58 W. Va. 418 | W. Va. | 1905
James M. Laidley recovered a judgment in 1874 in the county court of Kanawha county against William C. Reynolds. Laidley brought a chancery suit, 1896, in the circuit court of Kanawha county stating in his bill that by deed dated 25th January, 1892, Mary D. McClung and her husband had conveyed to Annie L. Reynolds, wife of William C. Reynolds, two lots of land in the town of Ruffner for the consid
The plaintiff’s bill is defective in failing to allege that Annie L. Reynolds had notice of the fraudulent intent of her husband in procuring the deeds to be made to her, according to the principles laid down in Scraggs v. Hill, 43 W. Va. 162, holding that, “A creditor cannot set aside a voluntary conveyance, after five years from the making thereof, without proof of actual fraud participated in by the parties to the transaction.” The syllabus includes both parties as participating in the fraud to take it out of the statute. The opinion pointedly says so. The question depends upon the construction of sections 1 and 2, chapter 74, Code, and section 14, chapter 104. One construction is, that section 1, chapter 74, annuls a transfer made with intent to defraud creditors, whether voluntary or on valuable consideration, saving only purchasers for value without notice. Taken alone that section would avoid every fraudulent deed not on consideration valuable in law. The law (outside of section 14) is surely as laid down in Bump on Fraudulent Conveyances, section 239: “The validity of a voluntary conveyance depends upon the intent of the party making it, and not on the motive with which it is received. The proviso at the end of the statute only extends to transfers made upon a good consideration, and the only consideration which is good within the meaning
The argument is made that as the judgment creditor died after judgment, and it does not appear to have been revived in the name of his administrator, its lien has ceased. It is not necessary to hold that this is a lien for the purposes of this case. A general debt would do just as well. But very plainly a judgment lien on land does not cease to be such because of the death of its owner, because section 5, chapter 139, Code, makes it an absolute lien. The judgment is a lien by mere force of the statute. When once it fastens on the land it sticks to it notwithstanding the death of either party, and may be enforced in equity without revival, revival being necessary only for the purpose of issuing execution. The lien does not come from an execution. It is not a part of the action in which the judgment was rendered. It comes from the statute, and may be enforced always in equity under section 7. Maxwell v. Leeson, 50 W. Va. 361; Burbridge v. Higgins, 6 Grat. 120; Taylor v. Spindel, 2 Id. 44; James v. Life, 82 Va 702; Black on Judgments, section 467.
The point is made that when the circuit court found that the Ruffner lots were not liable, that instant the Kanawha circuit court lost jurisdiction and could not decree against the Boone land. This is rested on chapter 23, section 1, Code,. saying that a suit to subject land to a debt must be brought in the county where the land is. Plainly there is nothing in this point. The bill proceeds against both tracts. They
Eor the reason that the suit was not begun within five years after the deed for the Boone land and is barred as a suit to set aside a deed merely voluntary, we cannot hold it liable, for want of allegation and evidence of notice by Mrs. Reynolds of the alleged fraudulent intent of her husband. This prevents charging the land on the ground of actual fraudulent intent. As to the Ruffner lots upon the evidence we conclude that the3' were not purchased with the means of the husband.
We are asked to remand the case to allow amendment of the bill. To allow this it must appear from the proof that a case exists which, on a bill charging Mrs. Reynolds with knowledge or participation in the fraud, could be sustained. Lamb v. Cecil. 25 W. Va. 288. But the proof does not show that Mrs. Reynolds knew of her husband’s indebtedness to the plaintiff; does not fix guilt upon her. We cannot guess that such evidence exists, so that upon amendment of the bill it would be sustained by evidence. We cannot remand to let the plaintiff hunt up new evidence.
Therefore, we reverse the decree and dismiss the bill.
Reversed mid Dismissed.