43 W. Va. 790 | W. Va. | 1897
W. D. Prim and Prank Brown, partners, under the firm name of W. D. Prim & Go., filed their bill in the Circuit Court of Taylor County against Elijah B. McIntosh, Anna McIntosh, Thomas Moore, and Mary A. Moore, his wife, and Joshua P. Cole, and alleges that on the 14th day of November, 1888, the defendant Elijah B. McIntosh purchased of Joshua R. Cole a parcel of land situated in Taylor County, on the waters of Valley river, and took a deed for the same, a copy of which deed they exhibited; that on the 18th day of January, 1890, while in possession of said land, said McIntosh executed to said Cole, from whom he purchased the land, his promissory note for the,
The defendants Elijah B. McIntosh and Mary A. McIntosh, his wife, filed their separate answers to the plaintiffs’ bill, putting in issue all of the material allegations of said bill, which answers were replied to, depositions were taken in the cause, and on the 16th day of January, 1896, a decree was rendered therein, holding that the deed of Elijah McIntosh and wife to Thomas W. Moore, dated November 14, 1892, and'the deed of T. W. Moore and wife made to Anna McIntosh, dated November 17, 1892, are fraudulent and void as to the plaintiffs’ judgment for the sum of forty-one dollars and twenty-seven cents and two dollars and sixty-five cents costs, with interest from the 30th day of May, 1895, aggregating the sum of forty-six dollars and fifty-two cents, and decreed that said deeds be set aside and held for naught as to said judgment of the plaintiffs, and directed that unless said Elijah McIntosh, or some one for him, pay to said W. D. Prim & Oo. the sum of forty-six dollars and fifty-two cents, with interest from the 14th day of January, 1896, together with the cost of said suit, within thirty days from the rise of the court, a special commissioner therein appointed for the purpose should sell the real estate in the bill and proceedings mentioned, at the time and place and upon the terms therein specified, and report his proceedings t.o the court; and from this decree this appeal was applied for and obtained.
It is claimed by appellant that the court erred in holding said deed fraudulent and void without any proof upon the part of the plaintiff's, and in the face of full proof that the money to pay for said land was the separate estate of the appellant, derived by inheritance, which fact was made known to the original vendor, who was the assignor of the debt, and who assigned (without.recourse) to Brim & Oo., long after the conveyance was made to appellant, Mary McIntosh. Now, the plaintiffs allege that E. B. McIntosh executed a note for one hundred dollars, dated the 13th day of January, 1890, to Joshua R. Cole, from whom he purchased said land, payable one year after date; and that after said note became due and payable, and before the same was paid, to wit, on the 14th of November, 1892, the conveyances to Thomas W. Moore and from said Moore to
Joshua B,. Cole could not have successfully attacked said conveyance from E. B. McIntosh to Thomas W. Mooore, and from said Moore to Mary A. McIntosh, as fraudulent; and, not being possessed of that right himself, he could not transfer it by assignment to the plaintiff's, W. D. Prim & Co. It is true, this Court, in the case of Billingsley v. Clelland, 41 W. Va. 234 (23 S. E. 812), said that ‘‘the' assignment of a iiromissory note carries with it all the remedies of the assignor, including the right to attack a fraudulent conveyance” ; but this, as a matter of course, must be construed to mean the right to successfully attack such conveyances; and if the assignor was not entitled to such remedy he could not transfer such right by .assignment. In the same case it -was held that “a conveyance of property from husband to wife, directly or indirectly, with fraudulent intent towards prior or subsequent creditors, will be held void as to such creditors. ’ ’ The conveyances must be made, however, with fraudulent intent. In the case under consideration the evidence is clear that the purchase money was furnished by the wife out of her separate estate, and there was no fraud in conveying to her what she had paid for. "We find in 1 Pars, Oont. (8th Ed.) p. 237, the author says : “The action brought in the name of the assignor for the benefit of the assignee is open to all equitable defenses, but only to those which are equitable; that is, the debtor may make all defenses which he.might have made if the suit was for the benefit of the assignor, as well as in his name, provided these defenses rest upon honest transactions which took place between the debtor and the assignor before the assignment, or after the assignment, and before the debtor had notice or knowledge of it. The same rule holds as to the equities existing between- an assignor and his assignee in respect to a chose in action held for value and without, notice by a subsequent assignee. The latter takes the exact position of his vendor. The assignee of a nonnegotiable obligation can take no rights which his as
Reversed.