This was a contest between Bowen, Davis & Co., execution creditors of Wilson & Beardsley, and Thomas Q. Thornburg, a purchaser of a span of horses in controversy, which resulted .in a judgment in favor of the execution-creditors in the Circuit Court of Cabell county, from which the purchaser, Thomas Q. Thornburg, has obtained this writ of error. The facts are as follows:
On the 9th day of December, 1884, the firm of Wilson & Beardsley, who owned and operated a flourmill in the city
In March, 1887, plaintiff in error, Thomas Q. Thornburg, bought the horses of Ward & Henry, paying for them the sum of two hundred and fifty dollars. Thornburg had no notice of any claim ever having been set up against them until the defendants Bowen, Davis & Co. levied on them with their exeсution as the property of their debtor, Wilson & Beardsley, on the 27th day of August, 1890.
Thereupon Thornburg, under sections 151 and 152 of chapter 50 of the Code, tiled before the justice his petition to have an issue made up to try his right to the horses, and for a judgment releasing the same from levy. This issue was made up and tried by the justice, who issued the execution. He gave judgment for Bowen, Davis & Co., the execution-creditors. Thornburg appealed. It was tried by a jury before the Circuit Court on 28th March, .1891, and they found a verdict for the defendants in error, Bowen, Davis & Co.
During the progress of the trial plaintiff' moved the court to give to the jury three instructions. The court gave No. 1 and No. 2, to which defendants excepted, and refused to give No. 3, and plaintiff' excepted. On motion of defendants, the court gave to the jury instructions No. 1 and No. 2, and plaintiff' again excepted. These instructions are as follows:
Plaintiff's instruction No. 1:
“The jury are instructed that, if they believe from the evidence in this case that the two gray horses in contro
Plaintiff’s instruction No. 2 :
“The jury are further instructed that, notwithstanding the deed of assignment from Wilson & Beardsley to W. T. Thompson was void, and the sale of said horses by said Thompson as such assignee to said Biggs was also void, yet, if the jury find from the evidence that said Wilson & Beardsley had knowledge of said sale, and made no objection to said sale, but acquiesced therein, then such sale was valid, binding alike upon said Wilson & Beardsley and their creditors, Bowen, Davis & Co.”
Plaintiff’s instruction No. 3 :
“The jury are further instructed that if they find from the evidence that the plaintiff, Thornburg, and those under whom he holds,had had actual possession of the two horses in controversy for five years before the levy thereon of the execution of Bowen, Davis & Co., claiming the same as their own, under purchasers for a valuable consideration, then they should find for the plaintiff, Thornburg.”
Defendant’s instruction No. 1, as given :
“The court instructs the jury that, if they believe from the evidence that the plaintiff bought the horses, in controversy knowing that they were the same horses conveyed by Wilson & Beardsley to W. T. Thompson, by a deed of assignment that was fraudulent and void, and that that deed was of record in this county where the purchase was made, then said Thornburg was bound to take notiсe of the fact that said deed conveyed no title to said horses to W.
Defendant’s instruction dSTo. 2, as given :
“The court instructs the jury that if they find from the evidence that if the deed of assignment made by Wilson & Beardsley to W. T. Thompson, and that the horses in controversy were conveyed by said assignment, was void; that W. T. Thompson took no title by said assignment, and could convey none to William Biggs; and that Biggs, taking .no title from said Thompson, could convey none to Ward & Henry, and Ward & Henry, having no title to the horses, could convey none to Thomas Q. Thornburg, the claimant herein; but if they find that Thornburg, or those under whom he purchased, has had peaceable possession, claiming them as his own under his purchase of said horses for five years — then they must find for the plaiutiff.”
Plaintiff in error moved tlie court to set aside the verdict and grant him a new trial, but the court overruled the motion, and rendered judgment for defendants, and plaintiff excеpted, and has obtained this writ of error.
Defendants in error introduced no evidence, but “relied upon an agreement, then and there made with the claimant (plaintiff in error) that the said assignment of Wilson & Beardsley to W. T. Thompson, assignee, was fraudulent upon its face, and void, and that it has been so held by a decision of the Supreme Court of Appeals of West Virginia; and it was also agreed that the horses in dispute were embraced in said assignment.” This agreement refers to the case of Landeman v. Wilson,
Whether we may, under this agreement, look bеyond the case as reported, to the printed record, may be a question of so pie doubt. Prom the case as reported it appears that on the 9th day of December, 1884, Wilson & Beardsley, a firm operating a large flouring mill in Cabell county, in this state, made an assignment of their property, both real and personal, including their flouring mill, to W. T. Thompson,
The deed of trust is not set out in full; only such part as was deemed matoi’ial to decide the point then before the court; and the court held the deed of trust to be fraudulent on its face, and void in toto.
It appears from the facts certified in this ease that some time early in the year 1885, certainly before the first of April, 1885, W. T. Thompson, trustee, sold the horses here in controversy, for value, to William Biggs, with the knowledge and consent of A. J. Beardsley, of the firm of Wilson & Beardsley ; that Biggs took them into possession, and held them until some time in December, 1885, when,
The action of replevin has been abolished in this State, and the action of detinue is the action for the recovery of the possession of personal property. The .statutory bar to this action is five years. See section 12, c. 104, p. 729, Code (Ed. 1891).
That the statute of limitations in this State is not only negative in barring the remedy, but that it crеates a positive, prescriptive right to personal property, as well as real estate, is well settled. “It is settled that, when the statutory bar attaches, not only the remedy for the recovery of the property is gone, but that the absolute title thereto is at once transferred to, and thereby vested in, the possessor of the property.” Hall v. Webb,
It is equally well settled that although such conveyanсes are fraudulent, and therefore void, they are not absolute nullities, but are only voidable; that they are good between the parties; and that the grantee, though a participant in the grantor’s fraud, can convey a good title to another. See Fox v. Willis,
This results from the language of the statute itself. Section 1, c. 74, Code. See Freeland v. Freeland,
The judgment-creditor may treat the attempted fraudulent transfer as a nullity, and proceed at law to sell the property under execution just as if no transfer had been made (Bank v. Risley,
It is not contended that William Biggs was a party to /the fraud, or that he was not a purchaser for value and in good faith, so far as he could be such purchaser with a knowledge by recordation of the deed, fraudulent on its face. When ho bought the horses in controversy, no attack had been made on thе trust-deed, except by D. D. Lande-mau, and he only attached the real estate. lie garnished the trustee, Thompson, as to the proceeds of the sale of the personal property, which included the proceeds of the sale of these horses, and his execution was ultimately satisfied out of such proceeds of sale of the property sold by the trustee.
And for so much the stronger reason would this be true in favor of a subsequent purchaser for value and of those claiming under him, as against a creditor whose claim did not come into existence until after such purchase, and until after possession had been held thereunder for more than five years; or,in case such purchasers were creditors at the time of the assignment, if they had held such property, claiming it as their own, for more than five years, and had never by any ways or means, direct or indirect, obstructed the prosecution of such creditor’s right. See sectiоn 18, c. 104, Code. There can be no sound rule of law that would destroy or put in serious jeopardy the title of such a purchaser for value, who has held the same for five years, although he must know that the deed of assignment is fraudulent on its face, and therefore voidable by the creditors, if they see fit to repudiate the assignment, and enforce their rights.
Public policy requires that, as against such purchasers,
We are referred by defendants in error to the case of Snoddy v. Haskins,
Whereas in the case now under consideration the plaintiff, Thornburg, and those under whom he claims, were strangers, in no. way parties to the fraud ; were purchasers for value, from those who had at least the right to sell a voidable title; and if Bowen, Davis & Co. were then creditors, their remedy at once accrued, and was barred by the lapse of five years. If they did not become creditors until August, 1890, iliey had no right to call such sale and pur chase in question. So far as they are concerned, the sale was made by those who had the title, the possession, and the right to sell. What right had these subsciiuent creditors to complain of the sale made by the trustee and debtor, Beardsley, to William Biggs ?
Section 14, c. 104, Code, reads as follows: “J\To gift, conveyance, assignment, transfer, or charge which is not on consideration deemed valuable in law shall be avoided, either in whole or in pаrt, for that cause only, unless, within five years after it is made, suit be brought for that purpose, or the subject thereof, or some part of it, be distrained or levied upon by or at the suit of a creditor as to whom such gift, conveyance, assignment, transfer, or charge is
From this the implication arises that such limitation does not apply to cases of actual fraud (Snoddy v. Haskins (1855)
But if these defendants, Bowen, Davis & Co., are subsequent purchasers, whаt ground have they shown to set it aside at all or at any time ? In one respect the purchasers may occupy no higher ground than the fraudulent grantee from whom he buys, but he may, nevertheless, be protected by the ordinary statute of limitations, and his voidable title made good by lapse of time. Nor is there anything in Snoddy v. Haskins, supra, that militates against this view, or anything to make inoperative or inapplicable the' ordinary statute of limitations.
These parties held these horses in actual, visible possession for more than five years, claiming them as their own. They were not parties to the fraudulent deed of trust; had no knowledge of it except what is imputed to them as well as to others by reason of its being a recorded paper; and
I have discussed the case ón the theory that Thompson, the trustee, did not and could not pass to the purchaser an unassailable title, although no steps had been taken against the deed of assignment, but that he passed a voidable title —mere color of title; one that might be successfully assailed if there should turn out to be any creditor who should think fit t<> attack it, but, nevertheless, a title which time and possession would ripen into a perfect one. It is true that Landeman, the only dissatisfied creditor, as far as we know, did, by suit and attachment, attack the deed оf assignment, but recognized the sales made by Thompson, trustee, as valid, and attached the proceeds of sale in his hands, which included these horses; and his claim was satisfied out of such proceeds in the trustee’s hands.
We think, therefore, that plaintiff’s instruction No. 1 propounds the law correctly, and was properly given, and it is based upon a supposed state of facts confessedly proven ; and, the jury having found a verdict in violation of such instruction, the court ought, on plaintiff’s motion, to have set the same aside.
Eor the reasons already given', I regard plaintiff’s in
Plaintiff’s instruction No. 2 seems to be based upon the theory that the deed in question, being fraudulent on its face, and void in toto, is therefore absolutely void — a mere nullity, incapable of adoption or ratification; and, being so regarded, the title to the property remains in the attempted grantees, as though the fraudulent deed had not been executed. Iu that view, Biggs, being a bona fide purchaser for value from the trustеe, with the knowledge and acquiescence of Wilson. & Beardsley, would be regarded as purchaser from them, and would take a good title, no other or independent fraud being shown in the case. But this, as I have already attempted to show, is not correct. The fraudulent conveyance is good between the parties, and is only voidable ; andif the creditors, or others who have aright to assail it, assent to it, áud recognize it as binding, that takes away the taint of fraud. See discussion of the subject in 2 Bigelow, Frauds, 397-414, and cases cited; Waitе, Fraud. Conv. § 408 et seq.
That the deed is void in toto, and utterly void, in the sense of being incapable of ratification, are two different things, sometimes confounded. See Henderson v. Hunton,
I see no error in the instructions, defendant’s Ros. 1 and 2, as modified and .given by the court. The instructions as asked by defendants in error were based on the theory that such void or voidable title of Biggs, and those claiming under him, could not by five years’ possession be ripened into a good title, as against defendant’s right to levy on and sell the horses under their execution. We have already shown that such sale and delivery for value constituted a sufficient color of title, and that this may be so although the purchaser took no better title than his fraudulent vendor had.
I have already examined the case of Snoddy v. Haskins,
Plaintiff, Thornburg, in addition to the statute of limitations of five years, also relies upon purchase of the horses as having been made from Ward & .Henry, who, it is contended, were purchasers for value, without notice; that Ward & Ilenry, being purchasers for value without notice, acquired a valid title to the horses, as against the creditors of Wilson & Beardsley and all others, which title, by their sale to Thornburg, for value, they transferred to and vested in him, notwithstanding Thornburg’s knowledge of the
But-the presumption is that all these sales and transfers of the possession of the horses in controversy were made in the county of Cabell, where the deed of assignment was recorded. If it were true or could be presumed that the purchase of Ward & Henry was made out of the county of Cabell, then notice could not be imputed to them as a result of recording the deed. See section 6, c. 74, p. 651, Code. It is true the recordation of the assignment is not specifically proven, but, bj'- agreement, we are referred to the reported case of Landeman v. Wilson,
It is true there was no fraudulent intent on the part of Biggs, the immediate grantor of Ward & Henry ; but Ward & Henry, as well as the plaintiff, Thornburg, had knowledge of the fraud rendering void the title Ward & Henry derived from Biggs, the grantee of the parties to a recorded deed, fraudulent and void on its face. There is no evidence where or how Ward & Henry bought from Biggs, except that it was in December, 1885, for a valuable consideration, with delivery of possession.
The plaintiff', Thornburg, was examined as a witness, and testifies that lie had actual knowledge that the horses were originally the property of Wilson & Beardsley, and were included in the fraudulent assignment to Thompson ; but that he bought them in good faith in March, 1887, of
It may, however, be said with a good deal of plausibility, that, although the title of trustee, Thompson, was void, it does not necessarily follow, under the findings in this case, that the title of Biggs and the title of Ward & Henry werе void, or that Thornburg had notice of the fraud rendering void the title of such grantors, although their titles went back to a recorded deed, fraudulent and void.in toto on its face.
But the facts on this point are meager, and I do not deem it necessary further to discuss or to decide it. The facts found and certified do show without contradiction that Thornburg, and those under whom he holds, had had actual possession of the two horses in controversy for more than five years before the issuing or levy thereon of the execution of Bowen, Davis &Co., and claiming the same as their own, under purchases for valuable considerations.
Therefore the judgment and verdict complained of must be set aside, and a new trial awarded.
REVERSED. REMANDED.