40 W. Va. 15 | W. Va. | 1894
This was a suit in equity in which the hill was filed at the
The material allegations of the bill are as follows: That the said William R. Potter purchased the lot of land, which is sought to be subjected, from the defendant Martin for the consideration of four hundred dollars. That after said purchase said Potter erected a large building thereon, to be used partly as a dwelling house and partly as a storehouse, and did occupy said building as a dwelling and storehouse-until January 31,1887, when he attempted to convey the same to George M. Ralphsnyder; that said Potter, for several years, prior to said purchase, had been engaged in the business of retail merchant in said town, and had become largely indebted to various wholesale establishments and other parties in large sums of money, aggregating many hundred dollars: that said creditors became uneasy about their claims, and demanded payment, and threatened suit if the same were not soon paid; that being thus threatened and harassed, and fearing his property would be subjected to sale by his creditors, he determined to put his property out of his hands, for the
The defendant George M. Ralphsnyder occupies nearly twenty pages of the printed record in putting in issue the allegations of the bill, and in responding to the interrogatories propounded to him in said bill.
Virginia Potter, widow of said W. R. Potter, also answered the bill, admitting that she qualified as administratrix of her deceased husband. That she only received of the estate some personal property which she claimed as exempt against creditors, and alleging that she was no party to any of the alleged fraudulent transactions stated in plaintiff’s bill. That
J. Ami Martin, wlm is named as defendant, also answered said bill, admitting that on the first day of April, 1881, he-sold and conveyed said lot of land to W. R. Potter for the sum of four hundred dollars, in payments of one hundred dollars each, payable in one, two, three and four years. That the first two of said notes had been paid, but the last two, which fell due on April 1,1884 and 1885, respectively, have not been paid, but are entitled to two credits, one of sixty dollars or sixty five dollars, paid by George M. Ralphsnyder in the early part of 1888, and another of thirty three dollars and thirty nine cents paid the 24th of March, 1887, by I. C. Ralphsnyder,. a brother of said George M. Ralphsnyder, assigning to respondent a note executed by one A. S. Pratt to said I, C. Ralphsnyder for «aid amount. That said notes were assigned by him to W. G. Brown, who held them for some time; and that respondent has taken said notes back, and exhibits them with his answer, and asks that the same, and the lien by which they are secured, may be enforced, and that said lien be paid from the sale of said lot.
Numerous depositions were taken in the cause, and on the-4th day of April, 1891, a nunc pro tunc order was entered,, reciting that at the December term, 1890, the plaintiffs, upon the pleadings.and evidence in the cause taken, suggested that evidence so taken disclosed that I. C. Ralphsnyder had an interest in the property conveyed to his brother, the defendant George M. Ralphsnyder; and thereupon said plaintiffs, by their attorney, moved the court for leave to file an amended bill, making the said I. 0. Ralphsnyder a codefendant; which motion was resisted by said I. C. Ralphsnyder in person, and as attorney for his brother, and the motion was overruled,
On the 21st day of July, 1891, a decree was entered in said cause, confirming the report of the special commissioner appointed to make sale of said storehouse and lot and stock of goods, which appear to have brought one thousand and ten dollars at said sale, three hundred and thirty six dollars and sixty six cents of which amount.was paid down, and two single bills for a like amount,.payable in one and two years, with interest, were executed to said commissioner for the residue; and said decree also directed the manner of disbursing said cash payment.
J. R. Greer, A. Laing and W. Cruickshank, doing business under the firm name of Greer & Laing, filed their petition in the cause, alleging that said W. R. Potter was largely indebted to them for goods and merchandise which he had purchased from them prior to the 21st'day of March, 1884, and on said date said Potter executed his negotiable note to them for three hundred and nineteen dollars and twenty one cents, payable sixty days after date, at the National Bank of King-wood, which note is exhibited with said petition; that no part of said note had been paid; and also making the same allegations in regard to the conveyance of said storehouse and stock of goods to George M. Ralphsnyder as were made in the bill filed by Richardson, Goodwin & Co., in their bill; reciting the factthatsaiddeedhad been set aside as voluntary, fraudulent and void, in said suit of Richardson, Goodwin & Co., and
George M. Ralphsnyder filed his answer, putting in issue the allegations of said petition, which answer was repli&d to generally; and on the 29th day of March, 1892, a decree was entered in said cause, ascertaining the amount of said petitioner’s claim, holding said deed to George M. Ralphsnyder fraudulent and void as to said petitioner’s debt, and directing that unless said debt be sooner paid by Virginia Potter, ad-ministratrix, or some one for her, said special commissioner apply any surplus in his hands towards the payment of said petitioners’ debt; and from said decree rendered in the case of Richardson, Goodwin & .Co. against George M. Ralphsny-der and others, on the 4th day of April, 1891, said George M. Ralphsnyder obtained this appeal assigning as the first error the action of the court in holding the deed from William R. Potter to George M. Ralphsnyder fraudulent and void as to the rights of the plaintiffs.
Now, this Court held in the case of Lockhart v. Beckley, 10 W. Va. 88 (9th point of syllabus) that “fraud is to be legally inferred from the facts and circumstances of the case, when those facts.and circumstances are of such a character as to lead a reasonable man to the conclusion that the conveyance was made with the intent to hinder, delay, or defraud existing or future creditors.” See, also, Bartlett v. Cleavenger, 35 W. Va. 720 (14 S. E. Rep. 273). Now, in considering the circumstances surrounding this transaction, it is proper to look,
Another circumstance is shown by the answer of J. Ami.
Now, as to the fact developed in the testimony of H. II. Potter, of a false recital as to the considerations named in the deed from W. R. Potter to George M. Ralphsnyder, creating a discrepancy of fifty dollars; Bump on Fraudulent Conveyances (at page 40) says: “An instrument which misrepresents the transaction that it recites is evidence of a secret trust, and is calculated to mislead and deceive creditors. A false recital is therefore a badge of fraud, and the instrument in which it occurs must sustain a rigorous examination.”
Another fact which strongly indicates a secret trust is disclosed in the testimony of I. C. Ralphsnyder, who states that after said transfer he paid over to W. R. Potter and wife one hundred dollars or one hundred and fifty dollars collected by him on store accounts placed in his hands by said Potter. Now, it appears by the testimony of I. C. Ralphsnyder that on.the 2flth day of January, 1887, all the books and accounts of said W. R. Potter had been transferred and assigned to said I. 0. Ralphsnyder in consideration of past and future professional services, yet said I. 0. Ralphsnyder testifies that said Potter told him he needed money, and assigned that as a reason for wanting him to collect these claims, one hundred dollars or a hundred and fifty dollars of which he states he paid over to him; and he says, further, that said Potter told him he intended to pay all of his debts; but how he was to pay any debt out of the accounts, etc., assigned to said 1. C. Ralphsnyder for legal services, unless said Ralphsnyder secretly paid the money collected to him, no one can tell. That such was not his intention, however, is plainly apparent from the fact that he sold and conveyed his home, his storehouse and store goods to George M. Ralphsnyder for less than one
Row, in the case of Reilly v. Barr, 34 W. Va. 96 (11 S. E. Rep. 750) this Court held that “when it appears that an instrument conveying real estate is impeached as fraudulent by creditors of the grantor, if the evidence discloses the fact that said instrument is false in any material part, the burden of showing the transaction was fair lies upon the party who seeks to uphold it.” Row the consideration named in this deed was four hundred dollars, and yet H. H. Potter swears that I. C. Ralphsnyder told him, in the presence of W. R. Potter, when he was talking of buying the propertj”, that Ihe true consideration was four hundred and fifty dollars; and that there was a difference between Dr. Potter and him that was not considered in the record; so that, if this be true, there was another fifty dollars of purchase money not paid by George M. but by I. C. Ralphsnyder, and the deed is shown to be false in a very material part, and the burden of showing the transaction was fair is thrown upon said George 51. Ralphsnyder.
Waite, in his work on Fraudulent Conveyances, says, quor-ing from Story, Judge: “ ‘Fraud is always a question of fact with reference to the intention of the grantor. Where
The question as to whether G-eorge M. Ralphsnyder had notice of any fraudulent intent on the part of his grantor, W. R. Potter, is one which also may be determined by the surrounding circumstances. The testimony shows that for a week previous to the purchase of this property from W. R. Potter, he had been a visitor of his brother, and had been with him night and day. Two days before the deed was made, said Potter had transferred his books and accounts to I. C. Ralphsnyder, and it surely never would have occurred to George M. to purchase this property if I. C. Ralphsnyder had not told him of its value, and offered to loan him the money; and Mr. Wall says, in his testimony, that George M. was in the clerk’s office when his brother I. C. was urging the immediate recorda-. tion of the deed; and the evidence clearly showing that said
In the case of Smith v. Yoke, 27 W. Va. 639, this Court held that where a decree sought to be reversed is based upon depositions which are so conflicting, and of such doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusions to be deduced therefrom, the appellate court will decline to reverse the finding or decree of the chancellor, although the testimony may be such that the appellate court might have pronounced a different decree if it had acted upon the cause in the ’first instance. The same thing is held in the case of Bartlett v. Cleavenger, 35 W. Va. 720 (14 S. E. Rep. 273).
Applying the law, then, to the facts and circumstances shown in this case, my conclusion is that the court committed no error in decreeing that the deed from W. R. Potter to George M. Ralphsnyder was fraudulent and void as to the rights of the plaintiffs.
The next error assigned is in not ascertaining the personal estate of William R. Porter, and settling the administration accounts of his personal representative, before any sale of the land and goods in the cause described.
As to this assignment of error it appears by the answer
The creditor who first files his bill obtains thereby a priority, and is entitled to be first paid from the proceeds of the sale of the property, if there are no valid prior liens.
The deed, though ever so fraudulent as to existing creditors of the grantor, is valid and binding as between the parties to the fraud. See Core v. Cunningham, 27 W. Va. 210.
It is further assigned as error that the court decreed a sale of the property without giving the appellant George M. Ralphsnyder a day in which to relieve the same from sale. The plaintiffs, however, asserted no claim, and were entitled to no decree, for money against said George M. Ralph-snyder, and obtained no such decree against him. Their decree was against the estate of W. R. Potter, and his personal representative was allowed thirty days in which to pay said decree.
It is also assigned that it was error to read the evidence and pleading in the original cause in the petition proceeding of Greer & Laing against appellant. We find it stated, however, in Sands’ Suit in Equity (page 688) that “creditors may come in by petition to a suit attacking a deed on the ground of fraud, and their priority will be determined by the date of filing their petition, unless they have other ground of priority,” citing Wallace’s Adm’r v. Treakle, 27 Gratt. 479,
It is also claimed that it was error to overrule the demurrer of appellant to the petition of Greer & Laing, but as no reason for the demurrer is assigned in argument, and we see no objection to said petition, we must conclude that said demurrer was properly overruled.
This disposes of the errors assigned, and, for the reasons-above stated,' my conclusion is that there is no error in the decree complained of, and the same is affirmed,' with costs- and damages.