25 S.E. 886 | Va. | 1896
delivered the opinion of the court.
It appears from the record that Samuel Zigler sold the house and lot described in the bill to Joseph S. Miller, for the sum of $450, and conveyed it to him as trustee for EmmaS. Miller, his wife, on December 1, 1880 ; the vendor’s lien for the purchase money being reserved on the face of the conveyance. The evidence shows that Mrs. Miller was wholly without means or property, and paid no part of the purchase money. 'It also shows that Miller himself paid off the bond for the first installment of the purchase money, but does not sustain the claim of the counsel for the appellant that he made such payment, with the proceeds of property and labor which he was entitled to hold under the law as exempt from liability for his debts. Such statement appears in the answers of certain of the defendants, but it is affirmative matter, riot responsive to any allegation of the bill, and is unsupported by any testimony. The bond for the other installment of the purchase money was paid by M. B. E. Kline, the appellant, upon an agreement with Miller that the land should bo conveyed to him to secure the amount so paid and other debts that Miller owed him. The judgment in favor of J. I. Triplett, the plaintiff in the bill, was confessed by John S. Miller on October 7, 1880, and docketed on October 8,. 1880, and thereby became a lien from that time on any real estate which Miller then owned or to which he thereafter became possessed or entitled,
It'was claimed by the appellant that Miller made the payment on the property, and paid for the improvements put upon it, with his (the appellant’s) money, and that he was therefore entitled to hold the property under the deed from Zigler free from liability for the judgment of the plaintiff. It does not satisfactorily appear from what source Miller obtained the moneys he so used, though the evidence proves that he was in business with the appellant about that time, and tends to show that he received pecuniary assistance from him. It may be, as was claimed, that, upon a settlement of their business matters, Miller .would have been found indebted to the appellant. Still, no trust relation is established, nor such use by Miller of moneys belonging to the appellant shown as would entitle the latter to claim the property itself, or give him a lien thereon for such indebtedness, superior to the judgments recovered against Miller prior to the conveyance from Zigler.
Among other reasons urged by the counsel for the appellant for the reversal of the decree was that, it appearing that the deed from Zigler to Miller was made to him as trustee for his wife, and not merely to himself, the court should not have decreed a sale of the land unless the conveyance in that form was impeached as fraudulent. The bill set forth that Miller bought the house and lot from Zigler, and received a deed for it, but never recorded it, and that Zigler afterwards conveyed the property to Kline. It charged that the failure of Miller to record his deed, and the subsequent conveyance of the house and lot to Kline, constituted a fraud upon the plaintiff, and prayed that the deeds from Zigler to Kline, and from Kline to Compton, trustee, be declared null and void, and the house and lot be subjected to the payment of his judgment. Upon its appearing that the deed from Zigler to Miller was made to him
The deed from Zigler to Miller, as trustee for his wife, not having been recorded, but returned and canceled, the trustee, Gr. F. Compton, in the deed of trust made to him by Kline, could not be affected with constructive notice of it. He averred in his answer that he did not have actual notice of the said conveyance, and claimed that he was a bona fide purchaser for value, without notice. There is no evidence to the contrary. He was not aware that Miller had any interest in the property, and his title is apparently, good and unaffected by the lien of the judgments recovered against Miller ; but, for some reason unexplained by the record, neither the commissioner who took the account of liens, nor the court, in its decree, took any notice of any right in the trustee or in the creditors secured in the deed of trust. They have not appealed, however, and do not complain of the decree appealed from, but acquiesce in it. Perhaps the debts so secured, though the record does not show it, have been discharged.
For the foregoing reasons, the decree of the circuit court must be affirmed.