22 S.E. 860 | Va. | 1895
delivered the opinion of the court.
H. J. Simon, one of the appellants here, resided in the city of Bristol, on the Tennessee side of the dividing line between Tennessee and Virginia, and conducted business as a merchant tailor on the Virginia side from some time in 1890 to about the 2d of April, 1892. On the latter date, or about that time, he moved his residence into Virginia, and on the very day that he took up his residence here, or within two days thereafter, he made and filed for record a homestead deed, claiming as ■exempt, under the homestead law, provided by the constitution and laws of this state, the fixtures in his store and certain specified articles of goods and merchandise in stock, aggregating in amount $2,177.82, and then conveyed or assigned the residue of his stock of goods and merchandise to one H. E. Jones, to secure a long list of creditors, but preferring those who are put in the first class, in amount considerably beyond the value of the goods assigned. Immediately upon the recordation of this ■deed of assignment and the homestead deed, appellees John B. Ellison & Son, the C. Kenyon Company et al., G. L. Kahn et al., and Boyd Jones & Co. et al., filed their several bills of complaint against H. J. Simon and II. E. Jones, his assignee, in the corporation court of the city of Bristol, assailing the deed of assignment and the homestead deed executed by Simon and recorded on April 4, 1892, as fraudulent and void, charging that they were made for the purpose of hindering, delaying, and defrauding the creditors of Simon ; J ones, as alleged, having notice of Simon’s fraudulent intent; and upon the filing of these several bills of complaint, attachments were sued out in
A number of assignments of error are made by appellants, but many of them need not be specially noticed, as this case is to be disposed of upon the main questions involved, viz. : (1) Whether the court should have dismissed complainants’ bills, because the claims sued on were not due and payable at the time of the institution of the suits ; (2) whether or not the court erred in refusing to dismiss the bills at the time the attachments were abated ; (3) whether the court erred in holding that the homestead deed was fraudulent and void, because Simon moved into the state of Virginia for the purpose of claiming a homestead exemption ; and (4) whether or not the court erred in holding that the assignment to Jones was fraudulent and void as to appellees, and in decreeing priorities as to claims of appellees to the proceeds arising from the sale of the goods embraced in the assignment.
As to the first question to be considered, we are of opinion that the court should have dismissed all the bills, as to the goods embraced in the homestead deed, when the attachments were abated; and also dismissed the suits of Boyd, Jones & Co., Emel Wiel & Co., Cluett, Coon & Co., John B. Ellison
This brings us to the consideration of the question whether there is error in the court below decreeing that the deed of assignment from Simon to Jones, assignee, of April 4, 1892, was fraudulent and void as to appellees. The evidence of the fraudulent intent of Simon in making this assignment to hinder, delay, and defraud his creditors is abundant; indeed, conclusive ; and while it strongly tends, at least, to establish notice to Jones, the assignee, and to some of the preferred creditors secured, of Simon’s fraudulent intent, the question remains, is it sufficient to fix the notice upon the assignee or these creditors that is required to justify the court below in declaring, by its decree complained of, the assignment null and void? The grounds upon which the court below declared the homestead deed and the assignment fraudulent and void are stated in the decree as follows : “ * * * And the court being further of the opinion that, whether the debts of the defendants, the preferred creditors, were genuine or not, the reservation of an illegal homestead to said H. J. Simon, upon the face of said assignment, and as a part thereof, the homestead reserved amounting to more than $2,000, and the failure of the assignee to accept the assignment until two days after the said assignment was recorded, thus leaving the property so assigned in the possession and under the control of the said H. J. Simon until the assignee accepted the same, the raising of the debt due the Dominion National Bank, of which H. E. Jones was the cashier, from $200 to $250, was such constructive notice to the parties claiming under the assignment of fraud in the transaction as to put them upon inquiry, and affect them with the