47 W. Va. 287 | W. Va. | 1899
M. Schidlovsky and others appeal from a decree rendered in favor of the Kenneweg Company and others against Schilansky & Schatz et al. on the 18th day of June, 1898, by the circuit court of Tucker County, in five certain suits therein pending to set aside certain fraudulent transfers and conveyances of property by said Schilansky & Schatz, and subject it to the payment of their debs. Numerous errors are assigned, some of which are purely technical, and some reach the merits. Attachments were sued out and levied on three certain stocks of goods sold the same day by said firm to M. Scbidlovskv, D. Levy, and Frank Schulberg, respectively. The goods, because of their perishable character, were sold under an order of the court. The attachments were then quashed for insufficiency of the affidavits, and the proceeds of the sale were ordered paid to said purchasers. Before this was done the plaintiffs filed an amended bill, and the court restrained the payment of these funds as formerly directed until further order. The funds so held were on a final hearing directed to be paid to the creditors attacking the sales as fraudulent. The attachments were quashed and the restraining order was issued during the same term, while the. matter was still in the breast of the court. Hence the former order, which was in effect set aside and suspended by the latter, cannot be held to be res judicata as to the latter. No such plea was made, although it appears to be seriouslv insisted upon in argument. Res judicata must be pleaded in equity. The bills are in no sense multifarious, as they have but one object, and that is to subject the property of Schilansky & Schatz to the payment of their debts. Mary Geisberger having filed her affidavit and petition to that end, the appeal must be dismissed as to her. A commissioner has the right to give his reasons for his holdings, without being subjected to the criticism of arguing the case. So far as the conveyances to Schidlovsky, Levy, and Schulberg are concerned, the facts and circumstances cannot possibly be held to preponderate against the holding of the court. Even though they paid full value for the goods, it is plainly evident they were endeavoring to aid the firm of Schilansky & Schatz to perpetrate a fraud upon their
The real questions of merit which require consideration are those raised by exceptions to the commissioner’s report, as follows, to wit: M. Schidlovskv excepts because the commissioner holds that the deed of trust securing his debt was made at a time when Schilansky & Schatz were insolvent. William Rosendorf excepts for the same reason as to one of his debts. The deed of trust securing' the latter was dated the 22d day of June, 1895, and recorded the 1st, day of July, 1895. The deed of trust secur•ing the former was dated the 1st day of Julv, 1895, and recorded the 6th day of July, 1895. On the 5th day of July, 1895, the three stores were sold by said firm, which undoubtedly rendered them insolvent, as their real estate was already subject to other liens. If not insolvent, they should have preferred all their creditors, and not a select few. A man who is solvent can pay his creditors, and need not prefer any. The conduct of Schilansky & Schatz the latter part of- June and the first of July, when thejr began to fix their property and prefer their favorites, is proof positive that they were in failing circumstances, and were scuttling an already sinking ship, at the same time they were transferring the cargo in order to make friends with the mammon of unrighteousness. The man who cannot pay his debts is insolvent. Weigand v. Supply Co., 44 W. Va. 133, (28 S. E. 803); Wolf v. McGugin, 37 W. Va. 552, (16 S. E. 797). The commissioner finds' that the insolvency of Schilansky & Schatz as a firm, and individually occurred the latter part of June, 1895, as a result of the numerous sales and conveyances of their property about that time consummated. This Court is unable to say from the pleadings and proofs that such finding is wrong. Stewart v. Stewart, 40 W Va. 65, (20 S. E. 862); Chapman
Daniel Rosendorf excepts to the commissioner’s report because he holds that the thirty shares of stock of Schi-lansky & Schatz are liable to "the payment of the debts of the creditors assaulting them. He insists that there is neither allegation nor evidence of assault on these thirty shares of stock. The bills of both the Keneweg Company and the Baer Sons Grocery Company have the following prayer, which in effect is common to both, to w7it: “That the deed of trust executed on the 6th day of July, 1895, by the Middle Mountain Boom and Lumber Company to C. O. Strieby, trustee, to secure themselves, be declared fraudu
Rosendorf & Co. except to the commissioner’s report because he finds that Schilansky & Schatz own a one-seventh interest in what are known as the “Harper Lands.” Schilansky is forced by the court on application of the commissioner, to produce the following contract in relation to this land: “This memorandum of agreement made and ■ entered into this 10th day of June, 1895, by and between Wm. Rosendorf and Daniel Rosendorf, partners trading un
The decree is reversed and amended in so far as it postpones the trust deed of William Rosendorf to the debts of the Kenewig Company and the Raer Sons Grocery Company on lot No. 15, decreed to be sold, and ¡n so far as it subjects the thirty shares of stock of Schilansky & Schatz in the Middle Mountain Boom and Lumber Company to the payment of the creditors who attacked the deed of trust executed by said compány to secure its secretary and treasurer in the sum of ten thousand dollars, and in so far as it holds that Schilansky & Schatz own a one-seventh interest in the Harper lands and decrees the same for sale; and in lieu thereof it is adjudged, ordered, and decreed that the debt of William Rosendorf, amounting on the 18th day of June, 1898, the date of the decree of sale, to the sum of two thousand three hundred and seventy dollars, with interest from the 5th dajr of March, 1898, is a lien second in priority on lot No. 15, and that the thirty shares of stock of Schilansky & Schatz in the Middle Mountain Boom and
Modified.