33 W. Va. 387 | W. Va. | 1889
This was a suit in equity, brought in the Circuit Court of Ritchie county, by E. L. B. Mayhew, George Delano and James A. Erussel, partners trading under the firm name and style of F. L. B. Mayhew & Co., against S. E. Clark, H. M. Clark, his wife, G. E. II. Betts, J. H. Carrington and Henry A: Carrington,’ the last two partners as J. H. Carrington & Co., James M. Lemon and R. W. Gilchrist, in which the plaintiffs claim in their original bill that said G. E. H. Betts, S. E. Clark and James H. Carrington and Henry A. Car-rington, the two last partners (lately) doing business as J. H. Carrington & Co., are jointly indebted to the plaintiffs in the sum of $678.04 with interest thereon from the 15th day of October 1875, being the amount of a negotiable note and charges of protest thereon, which was made in the State and city of New York on the 13th day of August, 1875, by G. E. H. Betts payable to the said S. E. Clark sixty days after the date thereof for value received, and which the said S. E. Clark on the day and at the place last aforesaid, in the regular course of business and for valuable consideration, endorsed by signing his name on the back thereof, and delivered to the said firm of J. H. Carrington & Co., and the said firm after-
The defendants, S. E. Clark and H. M. Clark, demurred to plaintiff’s bill, and also filed their joint and separate answer to the same, in which they admit the making and endorsement of the note in the bill mentioned and described, but deny that it was duly or properly protested, they also deny the insolvency of Betts or Carrington & Co., or any or either of them at the time of the alleged protest, or at any
On the 10th of November 1881, the plaintiffs filed an amended bill, in which in addition to the matters contained in their original bill they claim that at the October term 1878, they oblained a judgment against S. E. Clark for $1,221.95 with interest from April 30th, 1876, and $48.30 costs, and a judgment on the order of attachment in said action, and an order of sale of the leasehold interest granted, to said S. E. Clark by the West Virginia Oil and Oil Land Company by deed dated January 3d, 1876, for the term of ten years, and the undivided half interest in the Gilchrist lease, and the personal property therein mentioned, plaintiffs agreeing with said Clark not to sell the last mentioned property until the controversy in relation thereto should be decided in this suit, and at the April term, 1878, of said court, by consent of said S. E. Clark, a decree was rendered by said court in favor of plaintiffs against said Clark for $678.04 the amount of the note in the bill mentioned with interest from the 15th day of October 1875, and $67.20 costs, the said Clark agreeing to pay the same in monthly instalments
They farther allege that said Compton refused to allow the said Harriet M. Clark to enter into the said leased promises mentioned in the lease to her oí February ,7th 1880, because said S. E. Clark had not fully complied with the conditions upon which said lease was made, and the said S. E. Clark for himself and as attorney in fact for his wife, executed and delivered, to said Compton their two joint bonds for $1,500.00 each, payable on the;7th day of December 1881, and 7th 'day of December 1882, with interest, and said Clark and wife executed a deed of trust upon the undivided three-fourths interest in said leasehold property, and the personal property thereon, to secure the payment of -said sums of money, and that while said deed of trust recites that the $3000.00 thereby secured was money loaned to S. E. Clark and Harriet M. Clark; in truth, and in fact $1,500.00, part thereof, was the purchase-price of the undivided half interest in said personal property, purchased by said S. E. Clark from said Compton, and that $1,500.00, 'the residue thereof, was the gift or bonus which said S. E. Clark promised the said Compton for making the said lease of February 7th .1880, to said Harriet M. Clark, and that there was no consideration for said promise made by said Clark to pay said $1,500.00, to Compton,' and no consideration for executing the bond for said sum'; that said S. E. Clark at or about the time he executed said bonds-and trust-deed aforesaid, executed for himself and as attorney'in fact for his wife, a conveyance of an undivided one fourth interestin said leasehold . property to John A. Hutchinson, in payment of a large sum' of -money due . from him to said Hutchinson, and received from said Hutchinson some money and securities as further payment therefor, and that said Hutchinson is now the owner of one fourth interestin said-property; and they allege that said Harriet M. Clark never at any time, paid or furnished any money or valuable thing
On the 23rd day of February 1884, C. A. Hinsdale presented to the court her petition, which was ordered to be filed, in which she asserts a claim. against said S. E. Clark for $864,64, as of the 20th of February 1878, evidenced by three notes of said Clark payable at the St. Fichólas Bank, Hew York, one for $260.63 and the other two for $300.00 each, at twelve, eighteen and twenty four months respectively, and she adopts the allegations of plaintiffs in said bill and amended bill, as to the fraudulent transfers of said property, and she asks leave to file her petition and he made a party defendant, to this suit, and that she may be decreed to be entitled to have her debt and claim out of the property and estate mentioned in the cause.
Several depositions were taken and filed in the cause by both plaintiffs and defendants, and on the 27th day of June 1885, the defendant H. M. Clark demurred to and answered the petition of Hinsdale, to the filing of which at this time the said Hinsdale objected and asked the court to consider a general replication as filed to said answer in case said answer was allowed to be filed, and the plaintiffs and said Hinsdale thereupon moved the court to appoint a receiver of the property mentioned in the cause, which motion, was set down for argument, and the said H. M. Clark filed exceptions to the depositions of James H. Carrington and others, and the exhibits made part thereof, and to the deposition of L. L. Johnson filed in the cause by the plaintiffs, which exceptions were set down for argument.
And the cause having been heard upon the pleadings, proofs and exhibits, the court below decreed that the consideration for the lease and demise of land for oil purposes mentioned in the deed of lease, made and executed by the West Virginia Oil and Oil Land Company to
The proofs in the case show that S. E. Clark sold said leasehold property to one Geo. F. IT. Betts, a brother of his wife H. M. Clark, as said Betts states, for $6,000.00-, and that he Betts, executed his notes for that amount to said S. E. Clark, and when asked if all these notes had been paid by
■It must he regarded as somewhat remarkable that the memory of this witness is so defective in reference to a transaction involving $6,000.00, which happened eight years before, he states that he resides in Hew York and is a travelling agent. Could it be that transactions of this magnitude were so frequent as to create no impression upon his mind ? At the time of this transfer he says he was living in West Virginia and Clark was living in Brooklyn, Hew York, he owned six other wells; Clark told him what he would take and he took him up; it was $6,000.00 and to assume the debt owing to Gilchrist of $3,000.00 or $4,000.00, one half of which Clark was liable to pay, (he can not come within one $1,000.00 of the Gilchrist debt) he was to pay the $6,000.00 in three notes of $2,000.00 each, payable in four, eight and twelve months; afterwards one of these notes was
It will be perceived by reference to the exhibits that £he assignment from S. E. Clark to Betts, was on the 27th day of Hovember 1874, and it was then that Betts executed to him his note, for the purchase-money, and although said Betts in his deposition says he paid all of said notes himself, yet when asked “Is not the note or acceptance held by May-hew & Co., and included in this suit one of the notes or acceptances that you gave Mr. Clark as a portion of the purchase-price, answered, “I don’t know,” he was then asked if this note or acceptance is for the amount of $666.66, then is it one of the notes or acceptances” and answered: “yes.” The deposition of F. L. B. Mayhew, throws light upon this transaction; he says: “We first discounted a note for the accommodation of Mr. Clark. Said note was drawn by 6. E. IT. Betts to the order of S. E.
Now in the case of Herzog v. Weiler, 24. W. Va. 199, this Court has held that “where an insolvent husband transfers to his wife’s brother by deed for an alleged valuable consideration, all his personal property; soon thereafter the said brother transfers the said property in like manner to another brother, and the latter immediately transfers it to his sister,
In -the case of Burt v. Timmons, 29 W. Va., 441, this Court held that “A transaction ■ between father and- child, husband'and wife, brother and sister, or between others, between-whom'there exists 'a natural and strong motive to provide for a dependent at the expense of honest creditors, if such transaction be impeached as fraudulent, may be shown to be fraudulent by less proof, and the party claiming the benefit of such transaction, is held to a fuller and -stricter proof of-its justice, and if the fairness- of the transaction, after it is shown to be prima-facie fruudulent, than would-be required if the transaction was between strangers.” “When a wife purchases land or other property, the burden'is upon her to-prove distinctly that she paid for the land or bther property with funds'not furnished by her husband.” And in the- case of Core v. Cunningham., 27 W. Va. 206. This Court held that “transfers of property either • directly or indirectly # by an insolvent husband to his wife, during cover-ture, are justly regarded with suspicion, and unless-it clearly appears that the consideration was paid from the separate estate of the wife, or by-some one for her out of means not derived either directly or remotely from the - husband, such transfers will be held fraudulent and void, as to the creditors of the husband,” also, “a conveyance of land made by a third person to-a wife, which is fraudulent in fact, will be held void as to-subsequent as well as existing creditors of the husband,” and “where the facts' and circumstances
Now it seems to-me that the facts and circumstances proven in this case taken in connection with the law above quoted, clearly indicate that the assignment made by said S. E. Clark to Betts, and from Betts to Lemon and from Lemon to Mrs. H. M. Clark, were made with the intent to hinder, delay, and defraud the creditors of said S. E. Clark, there is no proof or pretence that said Ii. M. Clark paid any consideration for said transfer, but on the contrary the proof shews that nearly the entire purchase-money was paid by the return to Betts through the hands of Lemon of the notes he Betts executed to said S. E. Clark, the title passes to her through her brother and cousin, and the consideration comes, if consideration it can be called, from said S. E. Clark in the surrender of the notes he held against Betts.. She offers no proof whatever, to show that she paid any consideration for said notes; and if any such proof existed it is natural to presume, she would have -produced it.
Now it appears that the West Virginia Oil and Oil Land Company on the 7th of February, 1880, executed a. lease to Mrs. Harriet M. Clark for lots 2, 3, 4 and 5, on Whitwood run, and on the face of the lease recites that for and in consideration of the matters hereinafter mentioned and referred to doth grant and demise &c.; and no consideration is therein set forth, except that it is therein provided that .the agreements, covenants and stipulations of the said deed of lease to B. W. Gilchrist shall be the agreement and stipulation of said deed and were made part of said lease, showing that the new lease was upon precisely the same terms as the old one, which provided that one third of the oil produced should be delivered in barrels furnished by the lessor as royalty. Mrs. H. M. Clark in her deposition does not pretend that she paid any consideration for this new lease, and by referring to the deposition of L. L. Johnson who states that he has been treasurer and director of the West Virginia Oil and Oil Land Company since 1880, and that the consideration for the new lease was the release of all the property included in the Fate run and Short run lease by S. E. Clark to the West
In the case of Lockhard & Ireland v. Beckley, et al, 10 W. Va., 87, this Court held “that where a .husband or father purchases land in the name of his wife.or child, or in his own name and in either case procures a'conveyance to be made to the wife or child, there is no resulting trust for the husband or father as in the case of a purchase by one and a conveyance to a stranger. But such a deed if made with intent to hinder delay or defraud the creditors of the parly so purchasing may at the suit of such creditors be impeached, being within the statute against fraudulent conveyances?
In the case of Goshorn’s Ex’r v. Snodgrass, et al., 17 W. Va., 717, this Court holds that “The proposition that fraud must be proved and not presumed, is to be understood only as affirming that a contract honest and lawful 'on its face must be treated as such, until it is shown to be otherwise by evidence either positive or circumstantial. Fraud may be inferred from facts calculated to establish it. If the facts established afford a sufficent and reasonable ground for drawing the inference of fraud the conclusion to which the proof tends must in the absence of explanation or contradiction be adopted.”
It is earnestly contended by counsel for the appellant; that by suing upon and claiming the note described in plaintiff's bill which represents part of the consideration or price for said -half interest sold by Clark to Betts, the 'said: plaintiffs affirmed the transaction and are estopped from disputing the validity of the sale for which said note as part consideration, that Clark could not impeach the sale and the plaintiffs who claim in privity with him to the extent of said note have no better footing than he had. This position as we think can not be sustained when taken in connection with the circumstances’ of this case. It will be perceived that S. E. Clark assigned and transferred his interest in the Gilchrist lease to the defendant Betts on the 27th of November, 1874, and said Betts executed his notes to him for $2,000.00 payable six months after date, $2,046.89 payablfe' nine months after date and another payable twelve months after date for $2,000.00. It appears that one of these-notes for $2,000.00, was divided into four notes two for $666.66§, and two for $333.33|- and although it does not appea'r wheivthese smaller notes fell due, it does appear from the deposition of L. B. Mayhew that he first discounted a note for the accommodation of Mr. Clark drawn by G. E. H. Betts to the order of S. E. Clark, for $666.66 which was not paid at maturity. Mr. Clark was notified and gave a new note made by G. F. H. Betts and payable to the order of S. E. Clark for $678.04
Affirmed.