47 W. Va. 527 | W. Va. | 1900
A. M. Black and James Hammond, brotliers-in-law, one living- in Illiuois, the other in Ohio, about the year 1875 removed to Wayne County, West Virginia. They purchased live hundred acres of land near Cassville, in said county, and two lots in Cassville, from S. S. Vinson, for which farm and lots they were to pay sixteen thousand dollars, and took title bond from Vinson for same; and, having paid said Vinson something over one-half the price of said property, on the 22d day of November, 1876, the})- asked Vinson to convey- the property to their wives, Elizabeth R. Black and Amanda Hammond, and. to take from them a deed oí trust on the land of the same date, to secure the payment of the purchase money still remaining unpaid. The conveyance to the women and the deed of trust were accordingly executed on the said 22d day of November, 1876, the deed of trust being executed by the said women and their husbands, and both deeds were duly recorded. Soon after going to Wayne County, the said A. M. Black and James Hammond, as partners under the firm name of
Defendant Samuel C. Koonce filed his answer, filing with it a copy of the last will and testament of his father, Charles Koonce, whereby respondent William H. Koonce and George W. Philips were appointed executors thereof; said he had no personal knowledge of the recovery of the judgments set up in the bill, nor whether they had been paid in whole or in 'part, and had no knowledge nor information, and could state nothing, as to the personal property, or its value, owned or claimed by the defendants -in said judgments, of either of them, at the time mentioned in the bill, or at any other time, but denied, on information and belief, that said judgments, or either of them, were liens on the real estate, or any part of it, mentioned in the bill and in question in this suit; that he was not informed and could not state what business the judgment defendants, or either of them, were engaged in, in either of the years 1875, 1876, 1877, 1878, nor when the debts for which the judgments were rendered were contracted, nor as to the extent of the indebtedness of the said defendants or either
The defendants, William Ii. Koonce and George W. Philips, executors of Charles Koonce, deceased, Samuel C. Koonce, as trustee of said William H. Koonce, under the will of Charles, Sarah McKenney, late Sarah Wilson, and Rachel Philips, Lilly Bartholomew, Clyde Bartholomew, Hayward Bartholomew, Hthel Bartholomew, W. W. Zimmerman, H. A. Zimmerman, Charles Koonce, and Mary Koonce filed their joint and several answer, saying that they have no personal knowlege of the business in which the defendants in the judgments alleged in the bill were engaged, admit the recovery and recordation of the judgments, but, on information and belief, deny they are liens on the real estate in question..
The defendant, Samuel C. Koonce, trustee of William H. Kooncc, for a separate answer to said bill, refers to his answer as executor and in his own right, and asks that it be made a part of this answer. And the other defendants admit that Charles Koonce died seised and possessed in fee of the real estate in question in this suit, and this is all they know in relation to the said real estate; they know nothing of the purchase by defendants Black & Hammond, or the object for which they purchased, or the object and purpose for which they caused said lands to be conveyed by Vinson and wife to their wives, nor of the dealings of said Black & Hammond, or either of them, with Vinson, either in person or through their attorney, M. J. Ferguson, or of the dealings of said Samuel C, Koonce with said
The cause came on to be heard at the July term, 1897, and it was held by the court that the deed executed by the wives of (defendants Black & Hammond to Ratliff, trustee, was defective, and passed -no title to him; that the legal title to the farm below the town of Cassville, in Wayne Count}', set out in plaintiffs’ bill, is still vested in Amanda Hammond and Elizabeth Black; that they hold the same subject to the rights of the creditors of Black & Hammond and J. Hammond & Co.; and that the purchase money for said farm was paid by said Black & Hammond; and that the conveyance of said land procured to be made by the said Black & Hammond to their wives, Amanda Hammond and Elizabeth Black, was made with the intent to hinder, delay; and defraud the creditors; and tnat the acts of said Samuel C. Koonce, in discharging, or attempting to discharge and pay off, the»trust-deed liens, and the taking of a convej'ance of the farm below Cassville bought of S. S. Vinson, to himself, through the trustee, Ratliff, were all made with intent to hinder, déla}', and defraud the creditors of said Black & Hammond; and that the conveyance to Samuel C. Koonce of the farm below Cassville from George F. Ratliff, and the deed from Samuel C. Koonce to his father, Charles Koonce, were made with the full knowledge of the said S. C. Koonce of all the facts, and with the intent to hinder, delay, and 'defraud the creditors of said Black & Hammond and J. Hammond & Co.; and that a deed was executed to Charles Koonce by Samuel C. Koonce, who was acting as agent for his father, Charles Koonce, and that the same conveyed no title to the said Charles Koonce as against the plaintiffs’ claim; and it was
It is assigned as error that the court refused to compel the witness Amanda Hammond to produce a written agreement between the plaintiffs and herself, in pursuance of which she was testifying as a witness for the plaintiffs in the cause. In her testimony on cross-examination, Mrs. Hammond admitted that .there was a written agreement between the creditors suing in this-ca.se and herself but refused to produce it or disclose its contents, stating that she had signed it hcrsp.1], but refused to say who had signed it on behalf of the creditors, and that such refusal was under advice of her counsel. Notice was then given by appellants’ counsel that he would move the court to compel the production of the agreement, and move to reject her testimony, unless it should be pi'oduced. Witness! Charles Hammond, son of said Amanda Hammond, was asked, on cross-examination, whether.he knew' of any arrangement between him and his mother, or either of them, or any of his family, and the plaintiffs or their attorneys, as to what disposition was to be made of the property in case the plaintiffs in this cause should recover. lie replied, “Well, mother has assigned her interest away there in the place. Q. Who to? A. To settle her claim with the creditors. I believe she has settled her interest with them.” He says the contract was in writing, that he reau it, but when asked, “How did it read?” on objection by Mrs. Hammond, by counsel, he declined to answer. M. J, .Ferguson, attorney for defendants, filed his affidavit (which affidavit is not copied into the record, but, by consent, the oirginal may be read in the Appellate Court) to
The second assignment is that “the court erred in holding and decreeing- that each and every of the deeds mentioned in the bill was inoperative, fraudulent, null, and void, and made with intent and for the purpose of hindering, delaying, and defrauding the plaintiffs in the collection of their said debts,” and this involves also the third and fourth assignments, which are as follows: “(3) The court erred in holding and decreeing that no title vested in the trustee in said deed of trust by reason of the said defective acknowlegment thereof by the said married women, who, at the time of the execution and acknowledgment thereof by themselves and their said husbands, who were the equitable owners of said lands, to the extent of the payment of the purchase thereof paid by them, up to that time, and the said married women not being vested even with the dry legal title to said lands and lots at the time of the execution and acknowledgment of said deed of trust. (4) The court erred in holding that no title passed to your petitioner, Samuel C. Koonce, to the real estate in question, because of the said defect in said acknowledgment of said deed of trust, for the reasons stated in the third assignment of error.” It is insisted by appellees that the trust deed made by Mrs. Black and Mrs. Hammond and their husbands to secure Vinson in the payment of the residue-of the purchase money, because of defect in acknowledgment, was utterly void and of no effect; while it is contended by appellants that, taken together with the deed from Vinson to the women, it was made effective to convey their title, notwithstanding the defective acknowledgment; that the execution of the two deeds constituted one and the same transaction, and must be taken as one; that the women had put no money into the property,
Appellees claim that there was returned to S. C. Koonce by Black & Hammond four items — , one of six hundred dollars, from James Black in a mineral land transaction with John Bartram; one of six hundred dollars, paid him by the government for “damages;” one of three hundred and fifty dollars, paid bjr James Black in a land sale; and
Reversed.