11 W. Va. 122 | W. Va. | 1877
deliveredjthe opinion of the Court)
. The first point arising ill this cause is: should the deposition of Jacob B. Brown have been read upon the hearing of the cause. It is settled that at common law it is not competent testimony, Brown being the husband of his co-defendant Emily Brown. This question has been directly before this Court in Hill et ux. v. Proctor, 10 W. Va., 59, the court citing the common law rule, as laid down in 1 Greenl. Ev., section 334 &e., held that “the 22d and 23d sections of chapter 130of the Code of 1868, make no material change in the common law, as to husband and wife giving evidence for or against each other in a case in which they are parties, except in an action or suit between husband and wife.” The evidence in the cause just cited was given under circumstances very much like those surrounding this case. Hill’s deposition was taken in the cause of Hill et ux v. Proctor, and details statements favorable to himself and wife against the defendants.
It would be in violation of a clear principle of common law, not interfered with by the statute, to read the deposition of Brown upon the hearing of this cause. But it is argued by counsel for plaintiffs, that no exception was made to reading it in the court below, and it is too late to object here. If the objection did not affect the competency of the witness, and had not been made in the court below or passed upon by that court, it ought to be considered as having been waived and could not be noticed by the appellate court; but affecting as it does the competency of the witness to testify at all in the cause, it will be considered here, although the objection be here made for the first time. Hill et ux. v. Proctor, supra. The court, therefore, erred in hearing the 'cause upon that deposition'.
The next question is: Was the conveyance procured to
Applying those principles to this cause : Was the conveyance procured to be made to Mrs. Emily Brown with the actual fraudulent intent to hinder, delay or defraud the creditors of Jacob B. Brown ? Nearly all the debts audited in this cause appear to have been contracted subsequent to the date of said conveyance. At the time the conveyance was made, as the pleadings and, proofs show, the said Brown owed the Kabletown and Bloomery Turnpike Company about $50.00; and by Jacob B. Brown’s admission in his answer he also at that time owed to Massman & Co. a debt of about $168.00, of which he claims to have since paid $100.00, and claims that at the time he filed his answer, he only owed that firm about $68.00. The commissioner’s report shows, that on the 1st day of March, 1876, he owed said firm of Massman & Co. $271.27. Afterwards, beside the $3,000.00 which his wife claims he had given to her, he paid (as we shall hereafter show) upon the property $1,500.00. The pleadings and proofs show, that the most he owed at the time the conveyance was made, was bout $218.00; and also that but little additional indebtedness was incurred by him for nearly a year afterwards, and the major part of it after that. Now- does this state of things throw upon him the necessity of explaining the circumstances further to escape the conclusion that a
Evidence that she purchased amounts to nothing unless it is accompanied by clear and full proof, that she paid for it with her own separate funds. In the absence of such proof, the presumption is that her husband furnished the. means of payment. Bump, on Fraudulent Conveyance, 318 and cases there cited. And another fact in this cause which greatly strengthens
It is also assigned as error, that the court should not have decreed a sale of the property, when it was manifest from the commissioner’s report, that the property "would have in four years rented for sufficient to pay the debts charged upon it. In the case of Tennent’s heirs v. Pattons, 6 Leigh, 196 it was held by the court of ap
By the repealing act of the Code, chapter 166 section 1, the latter part of the section as it stood in the Code of 1860 was repealed. What was the effect of such repeal? Was it to declare, that in no case can a court of chancery while enforcing the lien of a j udgment, decree that the real estate shall be rented to pay the judgment? that in every case a sale must be ordered ? By the practice in Virginia, as it existed prior to the Code of 1849, while enforcing judgment liens on laud, the courts uni-formily held that it would be improper to decree the sale of real estate, when the debtor asked that it might be rented, and it appeared that the rents and profits of the estate would pay the lien in a reasonable time; and what was reasonable time was left to the sound legal discretion of the courts, which discretion was of course reviewable by the appellate court. If this was the practice of the chancery courts of Virginia, as we think it undoubtedly was, what was the effect of repealing the provision above referred to ? It was to restore that practice.
This is true; there is now no law fixing the time within which the rents and profits of the real estate will pay the debts, before the chancellor is authorized to decree a sale of the property. It is now left to his discretion to say whether it may be done in a reasonable time, of which he must judge ; and if he ascertains that the rents and profits of the real estate will pay the lien charged upon it in such reasonable time, it is his duty to refuse to decree a sale.
Many matters are left to the discretion of the chancellor ; and why not this ? In many cases great hardship may result to the debtor by decreeing a sale rather than a rental of his property, where the rents and profits would discharge the debts in a reasonable time; when no hardship would result to the creditor by renting the property and paying the debts in that way. The chancellor has a discretion in fixing the time upon which the sale may be made, and in some instances it may be almost if not quite as long as it would take to raise the amounts from the rents and profits, in cases where the property is considerable, and the debts small. Why then should he not have the discretion to decree a rental of the property in such cases? We see no reason or authority why he should not. But as this is a privilege accorded to the debtor, or the party whose lands are charged with debts and others interested, it must be exercised by them in the court below; and the decree must show that they asked a rental of the property and it was refused, before the decree for that reason will be reviewed in the appellate court. The decree in this cause does not show that the defendants asked that the property be rented, ‘and there
It is also objected, that the decree should have given a day to the debtor to redeem the property by paying the amounts charged upon it. It was manifest error for the court not to do so, as has been repeatedly held by this Court.
But it is contended in argument, that the day was given by the provision in the decree that the commissioners should not advertise said property for sale before the 1st day of September thereafter. This does not give a day to redeem. There was nothing to prevent the commissioner's from selling, though the defendants had offered to pay the debts in full and tendered the money.
It was improper to confine the sale to the “ brick store ” house without the consent of all the parties to the suit. There would have been nothing wrong in offering that first, if a sale had been proper, but it should not have been confined to that; as if it had failed to bring sufficient to discharge the debts, it would have been necessary to direct more of the real estate to be sold, thus unnecessarily harassing the parties with costs.
For the foregoing reasons, I am of opinion that the decrees of the circuit court of Jefferson county, rendered
Decrees Reversed and cause remanded.