57 W. Va. 480 | W. Va. | 1905
This is a contest between the heirs of Jemima Wood the second wife of Joshua Wood, and J. N. B. Crim, his credit- or, who seeks to subject to the payment of debts against
An amended answer in the nature of a cross bill hied by Crim at December rules 1901, setting up that all the liens against Joshua Wood had been paid except certain ones amounting to considerable sums of money to which Crim was entitled and asking to set aside the two deeds of October 13, 1885, as fraudulent, and to enforce his liens against said land; the answer of the children and heirs at law of Jemima Wood denying the validity of Crim’s liens and setting up a trust in all of said land in favor of their mother, and in their favor as her heirs on the ground that the original purchase money was paid by their mother and not by their father, and that during her life their father held the equitable title to the land in trust for her, and that after her death and up , to the time the land was convej^ed their father held it in trust for them as her heirs, subject to his curtesy, and replication to said answer. On the 31st of May, 1904, this cause was finally heard with «the cause of Crim and Robinson against Talbott et al. and a decree pronounced in favor of the heirs of Jemima Wood, the second wife of Joshua Wood, establishing the right of the heirs to said land and ordering a conveyance to them and to James M. Wood, their alienee, according to their interests therein. The decree further adjudicated that the liens claimed by Crim were not charges upon the said land, and other matters not necessary to detail here. From this final decree Crim appeals.
The record of the cause of Pickens v. Wood was the only one brought up and printed in this Court until after the submission thereof, when the Court under the rule adopted in the case of Fisher v. McNulty, 30 W. Va. 186, awarded a oertio-ra/ri to bring up the record of the cause of Crim & Robinson v. Talbott et al., and that record is now before us.
The only direct evidence offered to sustain the contention of the heirs at law of Jemima Wood as to the existence of the trast in.her favor is the evidence of Joshua Wood, the debtor, taken on the 17th day of March 1888. He testifies that he
Analyzing this parol agreement testified to by Joshua Wood we find that it purports to be something more than that the wife shall have a part of the land by furnishing a part of the purchase money. So far as this alleged agreement can be taken to be an agreement for the purchase of Joshua Wood’s whole interest in the land in consideration of furnishing part of the purchase money, it is an agreement, of purchase and not enforceable without writing. This is true notwithstanding the subject matter of the purchase is an equitable estate. Browne on Statute of Frauds, section 229; Hughes v. Moore, 7 Cranch (U. S.) 176; Wood on Statute of Frauds, section 227. This defeats the claim of the heirs of Jemima Wood to an equitable estate in the whole land. If the agreement testified to by Joshua Wood was otherwise free from objection and was established by sufficient evidence it could be considered as an agreement raising a trust in favor of the wife to an interest in the land proportionate to the part of the whole purchase money furnished by her. Viewing it in this light such an agreement need not be in writing, or proved by writing. Currence v. Ward, 43 W. Va. 367; Murry v. Sell, 23 W. Va. 475; Heiskell v. Powell, 23 W. Va. 717; Seiler v. Mohn, 37 W. Va. 507. However, where
The question for us to determine is whether or not this agreement is proved by sufficient evidence. It is claimed that the evidence of Joshua Wood as to this agreement is corroborated by the facts and circumstances appearing in the cause, and this leads us to an examination of those facts and circumstances. They are as follows: Jemima Wood received some money or property from the estate of her father, and probably from the estate of her mother, about the year 1873, near the time when the balance of the purchase money on this land was paid by her husband. It does not clearly appear what amount she received or exactly when she received it. Joshua Wood suggested to Morrall, commissioner, that he make the deed for the land to Jemima Wood saying that the money or the greater part of it paid for the land came through her and that she had received it from her father, John Reger, or his estate. Wood did not at this time according to the evidence of Morrall say anything about there being an agreement between him and his wife that the land should be conveyed to her because of her payment of the purchase money. He did not disclose the purpose for which he desired the conveyance to be made to her. . Two brothers by the name of O’Brien testify that in a conversation with John Reger, the father of Jemima Wood, about 1870 or 1872, shortly before Reger’s death, he told them, in effect, that he had sold some land and intended to give the proceeds to his daughter, Jemi-ma, to assist in paying for the land on which she and her husband lived, being the land in question. One of the brothers says that he thinks Reger told him that he had already let her or them, have a part of the money. This testimony, if true, was the evidence of mere declarations of a person not under oath principally as to the future intentions of such person. John Reger died shortly after the time of this conversation and there is no evidence that he ever carried out the inten
In determining the question as to whether or not the facts and circumstances corroborate the testimony of Joshua Wood as to the trust, agreement we must consider all the facts and circumstances together, as well as the acts and conduct of the parties so far as admissible. All the facts and circumstances appearing in this record, as well as the acts and conduct of the parties when considered together, do not corroborate the testimony of Joshua Wood as to the existence of this trust agreement but point almost irresistabty in the opposite direction. In considering the testimonjr of Joshua Wood we must do so in the light of certain well settled principles applicable thereto. This is an alleged transaction between husband and wife. When a transaction between husband and wife, where a strong natural motive exists to provide for each other at the expense of creditors, is sought to be impeached as fraudulent, it requires less proof to show fraud, and on the other hand where a prbma, facie case of fraud is made, much stronger proof to show fair dealing than would be required if the transaction were between strangers. Livey v. Winton, 30 W. Va. 554; Burt v. Timmons, 29 W. Va. 441. In a contest between the creditors of the husband and the wife or her heirs, owing to the great facility which the marital relations affords for the commission of fraud, there is, as there should be, a presumption against the bona tides of a transaction between the husband and wife, which the wife or her heirs must overcome by clear and satisfactory evidence. Crowder v. Garbe (Va.) 34 S. E. 470; Walker's Admx. v. Peck, 39 W. Va. 325; Wood v. Harmison, 41 W. Va. 376; Miller v. Gillispie, 54 W.Va. 450.
If the evidence were sufficient to justify the conclusion that Jemima Wood furnished to Joshua Wood a part of the purchase money of this land (there is no proof of it, except his testimony), then we are met with another presumption. When the money passed from her to him to • whom did it belong after he received it and applied it to the payment of the pur
To rebut these presumptions of mala iides in the transaction and that any money furnished by Jemima to Joshua Wood was intended as a gift the uncorroborated evidence of Joshua Wood surrounded by circumstances of suspicion is offered. Shall we sustain this alleged express trust against a creditor of the husband upon such evidence? If we do we open wide the door for fraud in nearly every case where the marital relation exists. It would in such case provide a powerful and effective defense to the husband’s debts. One so easily asserted and so difficult to disprove. The false claim of a secret trust is more dangerous than a fraudulent conveyance placed upon record which gives notice to the world and maybe attacked while the evidence is at hand. A secret trust may be claimed to have rested solely within the knowledge of the husband and wife for .years until all evidence to overthrow it is beyond reach and then be brought forth to defeat the collection of just debts contracted upon the faith that the ownership of the property is as the record shows it to be. To establish a secret trust upon such evidence would enable the debtor to defeat his debts upon the mere declaration that his property is not his own. Such a secret trust should never be enforced against the creditor of the husband in favor of the wife, except upon the clearest and most convincing proof. Its enforcement upon such evidence as here presented would be contrary to all principles of equity and fair dealing. We hold, therefore, that the uncorroborated testimony of a husband is alone, insufficient to establish an express trust in favor of his wife in land purchased by him in his own name against his creditors seeking to subject such land to the payment of their debts.
If there was sufficient evidence to show that Jemima Wood furnished a part of this purchase money and that she was to
While what we have already said must reverse the decree of the lower court there are other questions arising in the record.
This case was referred to commissioner Kittle to ascertain and report the liens and their priorities etc. His report, dated the 10th of April, 1900, was filed. He reports in effect, that Joshua Wood, on the 13th day of October, 1885, conveyed the one hundred acres in trust to James M. Wood, trustee, and that the annual rental value thereof is $85.00; that the liens against the one hundred acres are as follows:
A judgment in favor of J. N. B. Grim, assignee of Alexander Pickens, etc. against Joshua Wood, dated July 17, 1885, and docketed April 8, 1885, amounting to $328.82.
A deed of trust debt in favor of J. N. B. Grim, assignee, for $1,000.00 with interest from August 28, 1895, amounting to $1,284.33.
A judgment in favor of J. N. B. Grim, assignee of the Parmer’s Bank against John P. Thompson cashier, G. L. Stalnaker, J. N. B. Grim and Joshua Wood, dated July 9, 1885, and docketed October 27, 1885, amounting to $275.84.
One-half of a decree of $3,879.12 in favor of J. N. B. Grim, assignee of the State of West Virginia against James W. Tal-bott, etc. late sheriff of Barbour county, the one-half amounting to $1,939.56, which was a judgment of the State of West Virginia against James W. Talbott, Henry A. G-all, William McClasky, J. N. B. Grim, Jacob W. Robinson, A. B. Mocli-sett, Joshua Wood, I. B. Talbott, A. M. Talbott, B. I). Gall and J. W. Corder.
The report purports to ascertain the priorities of said liens
The statute of limitations is relied on as a defense to the •debts reported by the commissioner. So far as the debts reported by the commissioner are liens either under the deed of trust of the 21st of September, 1885, or the deed of the 13th of October, 1885, to James M. Wood, trustee, the statute of limitations does not apply to the enforcement of the liens therefor.
It is claimed that the evidence and the facts appearing do not prove that Grim paid the State judgment mentioned in said report. Having examined the record of this case and the case of Grim and Robinson against Talbott et cil. we do not think this claim is justified. On the contrary we think that it clearly appears that Grim is entitled to the benefit of the State judgment for any balance remaining due to him after the payments and applications shown in the record of the case of Grim & Robinson against Talbott et al.
It is contended that the right of Grim to enforce said State judgment for such balance is barred by'the statute of limitations and by the doctrine of laches or of estoppel. We do not ■consider this contention well founded. The State judgment referred to was a judgment rendered in favor of the State by the circuit court of Ohio county on the 24th of April, 1878, upon the official bond of J. W. Talbott, sheriff of Barbour county, and his sureties therein for the penalty thereof to be discharged by the payment of $6,140.26 and costs. Grim, Robinson and Wood were sureties of Talbott and the judgment was rendered against them and the other sureties. Execution was issued on the judgment on the 16th of September, 1818, and placed in the hands of the sheriff of Barbour county. The judgment was entered on the judgment lien docket in Barbour county on the 18th of September, 1878. At September rules, 1887, J. N. B. Grim and J. W. Robinson, claiming to have paid the judgment, filed their bill in equity against Talbott and all their co-sureties, living, and the personal representatives of those deceased, for the pur-
It is claimed that Grim cannot enforce the lien of the State judgment for his benefit under the rule laid down in the case of Hoffman v. Shields, 4 W. Va. 490, because the State can not be made defendant to the suit. It seems to us that this rule can not be applied where a surety pays a judgment of his principal rendered in favor of the State. This, in reason, must constitute an exception to the rule. A party should not be compelled to lose his right as surety in the payment of a judgment simply because such judgment was rendered in favor of the State, and we hold that a surety who pays a judgment in favor of the State is entitled to maintain a suit for the enforcement of the lien thereon for his benefit, without making the State a part3r to the suit.
The only other question remaining, is the exception taken to the deposition of Grim, who testifies in effect, that he is the owner of certain of the debts reported by the commissioner. This testimony is claimed to be evidence of a personal transaction between Grim and Wood, rendering it inadmissible upon the hearing of this cause, Wood having died before the hearing. We do not think this testimony is necessarily evidence of a personal transaction or communication between Grim and Wood. The payment of a judgment as surety for a principal debtor, or the purchase of a judgment does not necessarily imply a personal transaction or communication with the judgment debtor; therefore we think that the exception to the deposition of Grim should have been overruled.
Joshua Wood died previous to the entering of the decree complained of, and when this cause is remanded it should be further proceeded with according to the rules governing the settlement of a decedent’s estate.
In what we have said in relation to the debts or liens reported by the commissioner we have had no reference to the accuracy of the amounts of such debts or liens, as ,we have made no investigation as to the accuracy of the amounts. Generally where we have used in this opinion the expressions, “this cause” or “this case” the cause of Pickens v. Wood was intended.
Reversed.