34 W. Va. 182 | W. Va. | 1890
This is a suit in equity brought by Martin, plaintiff below, in the Circuit Court of Tyler county, to enforce payment of his judgment against Warner, one of the defendants below, by the sale of a tract of land conveyed by defendant Thompson to defendant Sidney Ellen Warner, wife of Mordecai Warner, upon the ground that the tract of land of fifty one acres mentioned was the property of the judgment-debtor, Mordecai Warner, and was conveyed to his wife, Sidney Ellen Warner, for the purpose of defrauding his creditors.
Prom the pleadings and proofs and inferences fairly to be drawn the facts of the case appear to be as follows: On the 15th day of May, 1886, plaintiff, Martin, obtained before a justice of Tyler county a judgment against defendant, Mordecai Warner, for two hundred and forty six dollars and fifty cents with interest from the date of the judgment, and one dollar and forfy cents costs. This judgment 'was docketed on the 7th of June, 18861 The debt, for which this judgment was rendered, was created and became due some time before the 8th day of March, 1883. The defendant, David Thompson, had sold and conveyed this tract of land to one Josephus Morris some time prior to 1878. In October, 1879, it was sold for taxes in the name of Morris and bought by Thompson. Some time after defendant Thompson sold it to one John Gibson giving him . a written contract, and Gibson sold the land and assigned this contract to defendant, Mordecai Warner, who agreed to pay Thompson the purchase-money. Defendant Morde-cai Warner lived on the land some three or four years, but becoming involved in debt, plaintiff’s debt among others,
"Upon this state of facts, the Circuit Court came to the conclusion, that the deed made to the wife was a mere shift and device to secure the land from the debts of the husband, and held it liable for the payment of plaintiff’s judgment. -Our own cases on this subject are already quite numerous, and the examination and discussion of the general doctrine thorough and full. See Lockhard. Beckley, 10 W. Va. 87; Hunter v. Hunter, Id. 321; Rose v. Brown, 11 W. Va. 122; McMasters v. Bdgar, 22 W. Va. 673; Stockdale v. Harris, 23 W. Va. 499; Herzog v. Weller, 24 W. Va. 199; Maxwell v. Hanshaw, Id. 405; Bank v. Wilson, 25 W. Va. 242; Core v. Cunningham, 27 W. Va. 206; Burt v. Timmons, 20 W. Va. 441 (2 S. E. Rep. 780); Martin v. Rexroad, 15 W. Va. 512; Kniglit v. Capito, 23 W. Va. 644; Connoway v. McCann, 30 W. Va. 200 (3 S E. Rep. 590), Rogers v. Verlander, 30 W. Va. 619 (5 S. E. Rep. 847); Holmes v. Harshberger, 31 W. Va. 516 (7 S. E. Rep. 452); Goshornv. Snodgrass, 17 W. Va. 717; Livesay v. Beard, 22 W. Va. 585; Burton v. Gibson, 32 W. Va. 406 (9 S. E. Rep. 255); Mayhem v. Clark, 33 W. Va. 387 (10 S. E. Rep. 785). Viewing the facts of this ease in the light of these authorities we are of opinion, that the conclusion reached by the Circuit Court is correct, but that an error was fallen into in the decree which undertook to give it effect. The deed from Thompson to Mrs. Warner ought not to have been set aside and annulled, but the land thereby conveyed should have been made liable to Martin’s debt; and provision should be made, when the cause goes back, for the payment of the unpaid balance of the purchase-money of one hundred dollars and its interest, represented by the bond due 1st
Therefore the decree, although correct as to the only point in controversy, will have to be set aside, and.the cause be remanded with directions to ascertain and provide for what may be due, if anything, on the purchase-money bond due 1st April, 1886, making Gillespie or the owner, whoever he may be, a party ; and in again decreeing a sale of the land not to set aside and annul the deed from Thompson to Mrs. Warner, but to hold the land thereby conveyed as liable to the payment of Martin’s judgment, after paying the said balance of the purchase-money, if any, giving Mrs. Warner a reasonable time in which she, or any one for her, may pay such debts; then, in default of payment, appointing a special commissioner to make the sale of the land, or of so much as may be necessary, on the usual terms. And the costs here are awarded the appellee, as the party substantially prevailing.
Remanded.