53 W. Va. 50 | W. Va. | 1903
Lead Opinion
Appellants, Henry Lieving and George M. Uease, appeal from a decree of the circuit court of Mason County, made and entered on the 17th day of May, 1901, in the suit in equity, wherein ap-pellee, James L. Knight, was plaintiff, and appellants and 0. C. Sayre, were defendants.
Plaintiff filed his bill at the April rules, 1899, wherein he alleges: That on the 18th day of July, 1894, said Hease was the owner in fee of fifty acres of land, situate in the county aforesaid; that on the day and -year last mentioned, said Hease and Sayre executed to plaintiff their note for five hundred dollars, payable twelve months after its date, with interest at eight per cent.; that on the 4th day of May, 1898, plaintiff recovered a
The joint and separate answer of defendants, ISTease and Lieving, was filed to the bill, “or to so much thereof as they are advised it is necessary or material for them to answer.”
They admit that ISTease was the owner in fee of the tract of land described in the bill, on the 18th day of July, 1894; admit the execution of the note, judgment thereon, and non-payment
"Respondents and each of them say that said deed for said tract of land from said George M. Hease to said Henry Lieving was made in good faith and in truth and in fact, the consideration, $800.00, stated in the said deed, was paid to said George M. Hease by said Henry Lieving. And said Iienry Lieving says that the allegation in said bill wherein he is charged with having knowledge of the intent on the part of said Geo. M. Hease to defraud the plaintiff and other creditors of said Hease, and that this respondent Henry Lieving participated therein, is not true.” Respondents also answered the specific interrogatories, and verified their answer as prescribed by statute. Depositions were taken and filed by both plaintiff and defendants. Sayre did not make any appearance; and as to him, the bill was taken for confessed. On the 17th day of May, 1901, the cause was heard upon the bill, taken for confessed as to defendant, Sayre, and its exhibits; upon the joint and separate answer of Hease and Lieving, with general replication thereto; and.upon the depositions taken and filed as aforesaid; whereupon the court decreed that the defendants, Hease and Sayre, do pay to the plaintiff, $725.83, with interest thereon, until paid, and the costs of suit; that the said deed from Hease to Lieving be set aside and held for naught as to plaintiff’s said demand; and that said indebtedness constitutes a valid and subsisting lien on said fifty acres of land. This is the decree appealed from.
The answer in its denials is not as specific and positive as it might be; but its sufficiency or insufficiency is not necessarily a question to be here determined, as this appeal can be decided on other grounds.
The interogatories contained in the bill are as follows:
“First. Did you, Henry Lieving, know at the time of the said conveyance, or had you been informed at the time of said conveyance that the said George M. Hease had signed a note to the said James L. Kniaht alona with C. C. Savre, for five hundred*54 dollars, or any other sum, for a loan of money or for any other thing ?
Secvond. Did you, Henry Lieving, pay any money to George M. Hease by reason of said conveyance, and if so, how much and where did you obtain the said money, and from whom ?
Third. How far do you live from the residence of the said George M. Kease and how long have you continued to reside within that distance of him, the said George M. Eease?
Fourth. What relation were you to the said George M. Kease at the time of the said conveyance, and how long had such relation existed between you and him?
Fifth. Who is now living upon the property conveyed to you by George M. Nease by the deed hereinbefore referred to ?
Sixth. If you paid any money to George M. Hease for said land did you borrow it, and if so. from whom did you borrow it, and have you paid the party back from whom you borrowed ?
If you have paid the money back to the party from whom you borowed it, state where you got the money and when, with which to pay the money back to the party from whom you borrowed it.”
And said plaintiff also propounds the following interrogatories, which the said George M. Hease is asked and required to answer under oath:
“First. How much money did you, George M. JSTease, receive from Henry Lieving for the transfer of your land as set out and described in this bill?
Second. When and where did you receive said money?
Third. What have you done with said money, state particularly how you have disposed of the same; whether you have any left of it, and if so, how much and where it is?
Fourth. What relation were you to Henry Lieving at the time of the transfer of said land by him to you, and what relation are you now to him?
Fifth. Do you still live upon the land which you transferred to Henry Lieving?
Sixth. What property did you own at the time of said conveyance made by you to said Henry Lieving, where was it located, what was its character and what was its value?”
Lieving, in answer to the special interrogatories thus propounded to him, says that several months before the conveyance was made, he knew that Hease and Sayre had executed the note
The said interrogatories having been thus answered, the question arises, as to the effect, if any, which should be given to said answers, either in favor of the plaintiff or of the defendants. It has been suggested that a defendant’s answers to specific interrogatories thus propounded are evidence for him. Whatever the general equity practice in this particular is, or may have been, we hold that this question is now controlled in this State by our statute.
In Story’s Eq. Pl., (10th ed.) sec. 38, it is said: “It is clear ■from what has been already said, that the interrogating part of a bill is not absolutely necessary; because, if the defendant fully answers to the matters of the bill, with their attendant circumstances, or fully denies them in the proper manner on oath, the object of the special interogatories is completely accomplished. In the old forms of bills-there accordingly were no special interrogatories. But from ..the considerations already mentioned/ the insertion of special interrogatories is often highly useful to sift the conscience of the defendant, and is almost universal in practice, except in amicable suits. In truth, without such interrogatories, it would be impracticable, in many cases, to extract from a reluctant defendant the facts and circumstances, so as to justify any decree.” Bart. Chy. Pr., Vol. I, 279; Fletcher’s Eq. Pl. & Pr., sec. 76, and cases there cited. These authorities establish conclusively that the interrogatories are a part proper, of the bill; and that the answers thereto are a part of the answer to the bill. The interrogatories and their answers are distinctively parts proper of the bill and answers respectively in this cause. The interrogatories are inserted in the bill before the prayer and verification thereof; and said answers thereto are also in the body of the general answer to the bill.
Our Code, chapter 125, section 38, declares: “If the plaintiff desire the defendant to answer the bill on oath, he must verify
In the case of Rogers v. Verlander, 30 W. Va. 619, 639, Judge Green, in discussing this question, says: “The appellant’s’ counsel, it is true, claims that the allegations in the answer of Mary A. Rock in reference to the consideration paid by her to J. W. Yerlander for said three acres of land conveyed by this deed, are to be regarded as evidence in her behalf, against the plaintiff and other creditors of J. W. Verlander, as they were responsive to the allegations on the subject in the bill. * * * To sustain his position that these allegations in the answer are to be considered as evidence for Mary A. Rock against the plaintiff, as they are responsive to allegations in the bill, the appellant’s counsel refer to 2 Story Eq. Jur. sec. 1, 528, and other text-writers. These authorities simply lay down the rule, uni■versally recognized, that prior to the passage of statute law regulating the pleading in chancery causes the rule in equity was, in the language of Story: ‘In every case the answer of the defendant to a bill filed against him, upon any matter stated in the hill, and responsive to it, is evidence in his own favor.’ And the reason given by Story and others for this rule»is: 'As the plaintiff calls upon the defendant on oath to answer an allegation ■of fact, which he malees, he hereby admits the answer to be evidence of that fact.’ ”
“But this effect of an answer responsive to a bill has been ■changed by our statute, as well as by the statute-law of most, if not all, of the states. In this State, under our statute laws, answers are not usually sustained by the respondent’s affidavit; ■and their effect has been changed entirely. They are, under our statute law, no longer to bé regarded as evidence in any case, whether they be sworn to or not. They are simply pleading,
In the ease of Johnson v. Ruley, 41 W. Va. 147, Judge Brannon, in his dissenting opinion filed in the case, very tersely states-the same views, as follows: “The bill charged that the deed was-without consideration, voluntary and fraudulent. This called on the party to prove the consideration recited to be true. Rogers v. Verlander, 30 W. Va. 619 (5 S. E. 847). He did not do so, unless his answer be read as evidence. The rule was atone time that an answer responsive to the bill was conclusive evidence in favor of the defendant, unless overcome by two or more-witnesses, or one witness and corroborating circumstances; but my understanding has been,-and, as I had thought, also- that of the profession, that our Code provisions had uprooted that rule and given the answer no force as proof, whether me bill be sworn to or not, or the answer sworn to or not, its only office being now to put the plaintiff to- proof of those things in his bill calling for proof: Chapter 125, section 38, gives the plaintiff right, by swearing to his bill, to search the conscience of the defendant for purposes of discovery by thus requiring a sworn answer; but the answer is not evidence for defendant, as the section says that, if
It seems to be conclusively established by the authorities, cited,, that the answer is not, nor is any part of it, entitled now to any weight as evidence- Its only effect is to put the plaintiff on proof of the allegations of his bill, denied by the answer.
Plaintiff proved by the deputy clerk of the county court of’ Mason County that Lieving was assessed on the personal property books as follows: For the )rear 1897, with three horses, total valuation, $100.00; two cattle, $25.00; two hogs, $10.00; one-carriage, $15.00; and household and kitchen furniture, $30.00, total, $180.00; for the }rear 1896, with five horses, $150.00; six cattle, $60.00; two hogs, $10.00; farming implements, $10.00 •; one carriage, $5.00; and household furniture, $25.00, total. $260.00; for the year 1895, with personal property of a total valuation of $220.00; for the year 1894, with a total valuation of $340.00; for the year 1893, with a total valuation of $360.00; for the year 1898, with personal property all valued at $210.00, it being three horses, two cattle, one hog, two carriages, farming' implements and household and kitchen furniture; but vras not'
The deed acknowledges a cash consideration of $800.00 paid, on the date of the deed, to Lease by Lieving, yet the testimony of Lieving, if it is to be believed, shows that only $100.00 was then paid, and that $600.00 was afterwards,, on.the 1st day of June, 1897, paid by him to Lease. Lieving says that he then had the $700.00. AVhy was it not all paid then, instead of the $100.00 ? It is fair to presume that the $100.00 was paid in the presence of Beller, in his office, if it was so paid, because he as notárv public appears to have taken and certified Lievings acknowledgment of the deed. AVhy Beller and Lease did not testify to this matter, is not explained. In as much as the deed is attacked as voluntary and fraudulent, this ommission to testify raises a strong presumption that Beller and Lease would not have supported Lieving’s statement regarding the payment of the $100.00, had they given their evidence. It is also shown that Lieving and Lease were father-in-law and son-in-law; had sustained that relation for about seventeen years; and for all that time had lived within one mile of each other. They must have been thoroughly conversant with each other’s business relations, and financial conditions. Lieving says that he knew of the execution of the note by Lease and Sayre to Knight for $500.00, but was informed that it had been paid by Sayre. Of whom he obtained the information he does not say; certainly not from Knight who could, and no doubt would, have willingly given him the correct information about the matter. He says he generally sold about four hundred bushels of wheat, in the year, but cannot state who bought it, or how much per bushel he received for' it. He also says that the crop he sold shortly before he bought the land was raised by him the year before. He swears that he sold twelve or fifteen head of cattle in the spring of 1897, which were over one year old, yet his assessment for that year shows only two head of cattle, valued at $25.50. As above shown, the largest valuation of personal property with which he was assessed was $360.00 in 1893, and the smallest, $180.00, in 1897. The next smallest was $210.00 in 1898. The list of his creditors filed by him shows quite a number of them. It is not probable
The statement of Hease filed with his answer is not less re■markable. He gives tire names of his several- creditors, with the exact amount paid to each. The amounts so given aggregate :$496.46, leaving the net balance of $303.54, of the $700.00, which balance he used in the maintenance and care of himself •and his family. Ho receipts are exhibited by nim for any of said •disbursements. This answer and statement, however, are not evidence, as we have shown. .
In addition to this, Hease yet owed the debt; he sold his home, his only land; and has failed to explain the transaction by his ■own evidence.
The rule, as to-proof of fraud is stated in 8 Am. & Eng. Enc. Law, 654, as follows: “It is not always necessary, however, that •direct affirmative or positive proof of fraud be given. It may be and usually is proved by circumstantial or presumptive evidence. If the evidence is sufficient to satisfy the mind and conscience of the existence of the fraud, it will be sufficient, although it does not lead to a conviction of absolute certainty. The fraud need not be proved beyond a reasonable doubt. Ballard v. Chewning, 49 W. Va. 508, 519. It was incumbent on Lieving to show that the deed was made for a valuable consideration. Rogers v. Verlander, 30 W. Va. 619; Childs v. Hurd, 33 W. Va. 68; Cohn v. Ward, 33 W. Va. 34; Haman v. Ward, 33 W. Va. 507; Spence v. Smith, 34 W. Va. 697. This he has not done. It also satisfactorily appears from the facts and circumstances in this case, that the deed is fraudulent as to plaintiff’s demand. Goshorn v.
There is no error in the decree complained of. It is, therefore affirmed; and the canse must me remanded to the circuit court of- Mason County, to be therein further proceeded with according to the rules and principles governing courts of equity.
Affirmed.
Concurrence Opinion
(concurring):
I concur in the syllabus and conclusion in'this ease, but not in all that the reasoning or language used may import.
Section 59, Chapter 125, Code, applies only to bills for relief and then only to the effect of a denial in an answer of a material allegation contained in a bill and provides that such denial shall only "put the plaintiff on satisfactory proof of the truth of such allegation, and any evidence which satisfies the court or jury of the truth thereof shall be sufficient to establish the same.” This does not change the former practice except as to the quantity of proof required to overcome the denial in an answer of an allegation contained in a bill. 2 Tuck. Com., 493. In .all other respects the force of an answer remains unchanged. This statute does not apply to bills purely for discovery. It would be a strange anomoly to permit the plaintiff to apply fox a discovery and then after the discovery is had, permit him to proceed to overcome it by proof in the same suit. He may not use the discovery obtained, but if he does use it he vouches for its truth; otherwise he would be permitted to prove and disprove at the same time.
Where a discovery is sought in a bill for relief, the plaintiff is . bound by the answer in so far as it is responsive to the bill and free from evasion, unless it is overcome by evidence which satisfies the court that it is false. This clearly is within the meaning of the statute. 1 En. Plead. & Prac. 914. So this Court held in the case of Johnson v. Riley, 41 W. Va. 147. A wrong construction entirely is put upon section 38, chapter 125, Code, which reads as follows: "If the plaintiff desire the defendant to answer the bill on oath, he must verify his bill by affidavit and if the bill be so verified, the defendant must in like manner verify his answer. But if the bill be not verified the defendant need not verify his answer, and if he does so, it shall not be entitled
