38 W. Va. 747 | W. Va. | 1894
28th'day of November, 1888, J. S. Cox a resident Code, e.
On the 3d day of September, 1889, said C. C, Miller obtained a judgment in the Circuit Court of Mason county upon said note against said J. S. Cox, Chas. E. Hogg and W. II. T. Spencer for onehundred and one dollars and sixty cents and costs.
At the time said note was executed said J. S. Cox was the owner of a tract of land situated on Reedy creek, in Roane county, West. Virginia, containing one hundred and twenty five acres, and on the 19th day of August, 1889, said J. S. Cox conveyed said tract of land to one George C. Brown as trustee, to secure to his wife Margaret J. Cox the payment of a note for the sum of one thousand dollars payable one year after date which deed of trust was recorded on the 19th day of August, 1889, about fourteen days before said judgment was obtained upon said note.
At the Eebruary Rules for the Circuit Court of Roane county, said C. 0. Miller tiled his bill in equity against said James S. Cox, George 0. Brown, trustee, and Margaret J. Cox, praying that said deed of trust might be declared voluntary and void, alleging that it was made with intent to hinder, delay and defraud the creditors of said defendant James S. Cox,' and because the same was without any consideration whatever deemed valuable in. law, that the same might be set aside and that the said tract of land might be sold to satisfy said judgment and costs, etc.
The defendant Margaret J. Cox demurred to the plaintiff's bill which demurrer was sustained, the bill was amended at bar and thereupon said Margaret J. Cox filed her answer. Subsequent to the amendment of said bill no demurrer seems to have been interposed, by the defendants or either of them. It is however contended by counsel for the appellees that Charles E. Hogg and W. II. T. Spencer
The questions raised by the first and second assignment of errors raise the question as to the correctness of the
The plain and unmistakable inference to be drawn from this conversation with E. M. Kiddle is that said Cox did not regard the debt, evidenced by the notes executed to C. E. Tfogg as a just debt and that he had executed the deed of trust for the purpose of avoiding the payment of the same, “he did not think he had any right to and would not pay them” ho did not wish to defraud any of his creditors out of his honest debts, but he had given the deed of trust and he did not intend to pay those unjust, notes, and while it is true that in his deposition said Cox denies that the said note and trust were executed for the purpose or with the intention of hindering, delaying or defrauding the plaintiff or any of his other creditors or any other person, yet he does not deny the conversation detailed in the deposition of said E. M. Riddle as aboye set forth. In this conversation with the witness Riddle he indicates the motive which induced the execution of the trust-deed; and while it is true that the declarations of the grantor made subsequent to the conveyance are not admissible to affect the title of the grantee (see Casto v. Fry, 33 W. Va. 449) yet in cases of this character they muy ho considered as a circumstance to show the motive which actuated the grantor in making a voluntary conveyance. She says in her deposition, he would repay to me amounts, he would
Seven years had elapsed since the last money was loaned to her husband according to her own statement, and he had used the same in his-business transactions, but when suit has been instituted against him upon a claim which he regards as unjust, and judgment is about to be obtained against him, he seeks to shelter his property from the impending judgment which he regards as unjust, and which he tells Mr. Riddle he will not pay, by executing a note to his wife for money she had given him to use in his business more than seven years before and executes a deed of trust on his land to secure the same. In answer to the question why after waiting so long, it occurred to said J. S. Cox that it was his duty to execute this deed of trust for the benefit of his wife, the conversation detailed by Mr. Iliddle with said Cox, clearly indicates the motive and supplies the answer. In the case of Zinn v. Law, 32 W. Va. 447, this Court held first that “where a wife delivers money or property of her own to her husband, which ho uses in his business, the presumption is that such delivery was intended as a gift, and in order to constitute such delivery a loan as against the creditors of the husband, the wife must prove an express promise of the husband to repay or establish by the circumstances than it was a loan and not a gift/’
Second, .“When the facts and circumstances tend to show that, a gift was intended, and that the husband used and dealt with the property as his own, the mere parol testimony of the husband and wife of a private understanding between themselves, that the transaction was by them considered or intended as a loan to the husband by the wife and not a gift will not as against the creditors of an insolvent husband rebut the .presumption of a gift,’* and this ruling as I think propounds correctly the law upon the facts stated. In the cases of Crawford et al. v. Carper et al., 4 W. Va. p. 56, a father-in-law appears to have advanced to his son-in-law at different times a considerable amount of
To thus raise a debt against him to the prejudice of creditors, the proof must be clear, full and above suspicion.
It. is assigned as error that the court sustained the exception to the plaintiff’s depositions for the reasons above stated, which point T regard as well taken, as it has for years been the practice in Virginia and in this state to take depositions before a commissioner in reference to a matter referred to him without giving any notice other than the general notice of the time and place of taking the account.
Returning again to the question as to the validity of the trust-deed executed by said J. S. Cox to secure his wife the note for one thousand dollars we call attention to the case of Maxwell v. Hanshaw, 24 W. Va. 405, where this Court held that “A transfer of property either directly or indirectly by an insolvent husband to his wife during coverture is justly regarded with suspicion, and unless it clearly appears that it was entirely free from any wrong intent or purpose to withdraw the property from the husband’s creditors it will not be sustained.
“In such transfers there is a presumption against the wife in favor of the husband’s creditors which she must overcome by aflirmative proof.”
Tn the case under consideration the circumstances which load us to the conclusion that said deed of trust was executed with intent to hinder, delay and defraud the creditors of said J. S. Cox may be summed up as follows:
First. The intimate relation of husband and wife existed between the grantor and the cestui que trust.
Second. The claim was barred by the statute of limitations at the time said note and deed of trust were executed.
In support of this proposition see Well’s Separate .Property of Married Women, § 662, where it is said, “If the husband receives moneys of his wife under an agreement to refund them, it seems in New York that the statute runs at the time of the agreement in the absence of any specified time of repayment — citing 3 Hun. New York Supreme Court 350, where the same is clearly held, and our statute expressly provides, section 15, c. 66, Code, that a married
Third. The declaration of said grantor to E. M. Kiddle that he had not executed said trust to defraud any of his creditors out of his honest debts, but that he had executed two notes to O. E. Hogg for attorneys fees that he considered unjust and that he did not think he had any right to and would not pay them, that there wore other agreements between him and Hogg that Hogg had not complied with.”
Fourth. The deed of trust was executed during the pendency of the suit on one of said notes he had executed to stiid Hogg and said trust was recorded only fourteen days bofo re the judgment was obtained.
Fifth. Although said J. S. Cox and his wife both state that an account was kept between them of the amount loaned to her husband, and returned to her by him at different times, said memorandum book was not produced.
Sixth. Said money was used by the husband in trading in stock and in law suits and the law would presumo a gift instead of a loan.
Applying to these facts and circumstances the legal principles announced in the authorities above cited my conclusion is that while said deed of trust must be regarded as good enough between the parties thereto, it can not be allow’ed to take precedence over the claim of the plaintiff or the other boiut file creditors of said J. S. Cox and must be held void as to the judgment of the plaintiff C. C. Miller, the decree complained of must be reversed and the cause remanded, with costs to the appellant.