82 W. Va. 139 | W. Va. | 1918
Only a few of the many issues developed in this cause have been brought up by the appeal. They are limited to questions pertaining to the alleged dower right of Lydia A. Taylor, widow of the judgment debtor against whom the suit was instituted, and certain claims of right of subrogation, by Marvin L. Taylor, son of the judgment debtor and fraudulent grantee of a portion of his real estate. The decree setting aside the deed made to him by his father, entered October 18, 1915, was permitted to become unappealable by lapse of time, but the decree of October 19, 1916, ascertaining the liens upon the real estate and determining their priorities, was attacked in time by an appeal.
E. E. Taylor, the husband and father, owned some real estate individually and was jointly interested with other parties in the ownership of additional parcels, some of which are alleged to have been partnership properties. Some of the latter belonged to the firm of Taylor & Taylor, composed of E. E. Taylor and Blake Taylor and doing an engineering and real estate business. One piece and some personal prop
Pending the suit and before the filing of. the cross-bills, E. E. Taylor died and his son, Marvin L. Taylor, was appointed administrator of his estate. Both he and his mother filed separate answers to the cross-bills, denying all fraud and fraudulent intent in said conveyances, and the widow, in some of her answers, claimed dower in all of the land of which her husband died seized, including the undivided one-half interest in the 48% acre tract conveyed to the son, she not having joined in that deed. The commissioner to whom the causes were referred made no reference whatever in. his report, to the matter of dower in the land, his report was not
The widow’s right to complain hero of.the lack ofvsucluprq-yision in the decree.is challenged on the;.ground,of alleged lion-action of the trial court, respecting the subject matter. -A denial of legal right may be effected as well by the: silence of' a judgment or decree as by verbal expression thereof. IWhat is necessarily, .implied is as firmly established as if.it had been expressed in.yrords. Entry of abridgment or .decree, without a disposition of a demurrer to the declaration ,or bill, impliedly overrules: the demurrer. , Failure,of a Recree .for money to allow credit, for a fully established and incon-troverted payment on,the.-;debt-would be a,palpable. denial of right by necessary implication. Under such circumstances, ithc appellate court.-,cannot say the trial court has not acted upon the omitted subject., Such- a, denial, of right is a very .common form of judicial, error. Nor is this a decree upon a bill taken pro confesso, of which complaint must b.e first made in the trial court. . Mrs. Taylor set up her right in that court, if any she has, and it was denied her. The error is a judicial pne not correctible by motion under the second clause of sec. h.pf ch. 134 of the Code. Stringer v. Anderson, 23 W. Va. 482; Bent v. Patten, 1 Rand. 25.
... As all the lands of any considerable value, other than the 48% acre tract, were adjudged to be partnership property and ¡to be encumbered beyond their values by. partnership debts and obligations, the principal subjects of controversy here relate to the 48i/2 acre tract. It was conveyed to E. E. Taylor .a.nd Lydia A. .Taylor by Lenora M. .Kiddy and her husband, .by a deed dated, February 7, 1906, for a recited consideration of $3,000.00, $1,400.00 of- which is acknowledged therein to .have been received in cash and the remainder of which was .deferred in two equal installments of $800.00 each and secured by a vendor’s lien. . Some time afterwards, Taylor paid ¡••one of these $800.00 notes, and, at the date of his conveyance to M. L. Taylor, the. other $800.00 note remained .-unpaid .and ¡.was held by Mary.A. Coberly to whom it.had been assigned by the Krddys-.;; Th.edeed from-E. E. Taylor to;M. L..Taylor,
Neither by a cross-assignment of error nor otherwise, do the appellees complain of the court’s denial of the relief prayed for against Mrs. Taylor, respecting the Kiddy land and the improvements thereon. They merely attempt to justify the disallowance of her dower in the husband’s half of that tract on the ground of their alleged right to such relief. Whether the trial court could properly set off one independent right against another in the manner suggested, is not a proper subject of inquiry in this cause, for the alleged right of the ap-pellees has no foundation in law.'
The money used in the purchase of the Kiddy land, as well as that used in the extensive improvement thereof, may have belonged to the husband. What was used in the making of the cash payment of the purchase was admittedly his. After that purchase was made in February, 1906, a tract of land belonging to the wife and another belonging to the husband were conveyed to H. C.. Jones, in consideration of $4,772.50, by a deed dated sometime in October, 1906, and some of the money derived from the sale was no doubt used in the improvement of the Kiddy property, but the record does not disclose, with any degree of certainty, how much of it was so used nor the amounts of the respective interests therein. Mrs. Taylor was manifestly a volunteer in the deed from Mrs. Kiddy. She does not pretend to have paid any of the purchase money. It is very evident, too, that some of the husband’s money went into the improvements made on the land. In thus gratuitously bestowing his money upon his wife, he may have intended to defraud his creditors, but these acts of his were not at
As the husband owned the undivided half of the Kiddy land and conveyed it to the son by a deed in which the wife did not join, she is entitled, as gainst the grantee, to dower in kin& in the land, unless he shall elect to pay her lawful interest,, from the time of her demand upon him for her dower, on one-, third of the value of the land, or a gross sum in lieu of dower,^ to be computed in the manner prescribed by the statute. Code, ch. 65, Secs. 10, 11 and 12. The son’s deed having been,.
If the son is entitled to be subrogated to the lien of $800.00 for purchase money originally held by Mrs. Kiddy, assigned to Mary A. Coberly and paid by Mm with money loaned or .given to him by Ms mother for the purpose, the case, as to the dower in the half interest in the Kiddy land conveyed to the son, falls witlrin the principles enunciated and applied in Bank v. Dudley, 76 W. Va. 332. She is entitled to full dower in the land, as against everybody except the.,holder -of the vendor’s lien and persons claiming under Mm, and to ihave the land sold subject to her dower in Mnd in the whole •thereof, if the proceeds of such sale are sufficient to pay the whole amount of the superior lien debt.
Marvin L. Taylor paid interest on the $800.00 purchase money note, amounting to $178.00. His mother obtained $1,500.00 from insurance on her husband’s life, taken for her benefit, and the note itself and additional interest thereon were paid out of that money. Both she and her son say she loaned him that money for the purpose and that she is now Ms creditor as to the money so loaned. TMs evidence being uncontradicted and sufficient to prove .the loan, the son has, in legal effect, paid that note as well as the interest thereon, •amounting in all to $1,018.93, one-half of which, $509.46, was •equitably a lien on the half interest conveyed to Mm. To. this extent, he has clear right to charge that half of the land. Kimble v. Wotring, 48 W. Va. 412; Schmeriz v. Hammond, 47 W. Va. 527.
This lien in his favor is superior to his mother’s right of dower in the land conveyed to him, and her right prevails over those of the other creditors, respecting that part of the land. If, sold subject to her dower in land therein, it will bring enough to pay that lien, she is entitled to have her dower in it so assigned. If not, the course to be pursued is clearly indicated in Bank v. Dudley, cited. As the land was not sold ' to satisfy this debt before" the death of the husband, sec. 3 of ch. 65 of the Code does not apply.
No right superior to that of the widow’s dower in the undivided one-third of the three acre tract lying on Cheat River, near Pickles Run, or in the one-sixth interest in Lot No. 6 of Hillside Addition to the City of Elkins, of which the husband died seized, was held by any person. She was
Encumbrance of the partnership real estate by firm debts, to an extent beyond its value, denies right of dower in it. In such property, the dower is subordinate to the firm debts, and, if it is exhausted in payment thereof, the dower right therein fails completely. Martin v. Smith, 25 W. Va. 579; Pierce v. Trigg, 10 Leigh 406, 426; Bates, Part., sec. 297; Parsons, Part., see. 273. It is suggested that dower in such cases takes precedence of the firm debts, or that real estate bought with firm money and used as firm property, is not subject to the law of partnership, in the absence of a written agreement making it partnership property. This proposition is not sustained by any authority cited, and it is variant from settled law. No such exception is made in the authorities above referred to. Whether real estate so acquired and used is partnership property is a question'of intention, dependent upon the facts and circumstances attending the transaction. It may be made out by inference alone and no express agreement either verbal or written is essential. Parsons, Part. , sec. 267; Bates, Pai’t. sec. 281. The findings of the trial court as to the .character of the land treated as partnership property cannot be reviewed, for the evidence pertaining to it has not been brought up.
In so far as the decree complained of orders sales of E. E. Taylor’s interests in the three acre tract of land near Pickels Run on Cheat River and Lot No. 6 of Block B of Hillside Addition to the City of Elkins and the one-half of the Kiddy tract of land conveyed to M. L. Taylor, accords to the creditors of E. E. Taylor liens thereon superior to Lydia A. Taylor’s right of dower therein, as herein defined, and M. L. Taylor’s lien by way of subrogation, on said half of said Kiddy tract of land, as herein defined, and denies the existence of said
Affirmed in part. Reversed in part. Remanded.