19 W. Va. 78 | W. Va. | 1881
announced the opinion of the Court:
The court below did not err in overruling the demurrer to the bill. A foreign judgment is a debt, for the recovery of which the creditor is entitled to all the remedies applicable to other debts. It is not necessary to bring an action at law upon such a judgment before instituting a chancery suit to avoid a fraudulent conveyance by the debtor. The second section of chapter 133 of the Code of 1868 provides: “Acred-itor before obtaining judgment or deci’ee for his claim may institute any suit to avoid a gift, conveyance, assignment or transfer of or charge upon the estate of his debtor, which he might institute after obtaining such judgment or decree, and he may in such suit have all the relief in respect to said estate, which he would be entitled to after obtaining a judgment or decree for the claim, which he may be entitled to recover.”
The bill alleges the debt; that there is no personal property, out of which it can be made; the purchase by Wortman of two tracts of land ; the payment of the purchase-money by him and the conveyance of one tract of land to his wife, and the other to John P. Workman ; that this conveyance to the wife was fraudulent as to his creditors and was so intended and especially towards the complainant. I do not see well how the charge of fraud could have been more distinctly made, although it might have been expressed with more technical precision and might have been couched in better legal phraseology; but substantially it is a distinct averment of fraud with all the circumstances necessary to constitute fraud. Hunter’s ex'rs v. Hunter et als., 10 W. Va. 321; Lockhard & Ireland v. Beckley, 10 W. Va. 87; Rose & Co. et al. v. Brown et ux., 11 W. Va. 122.
As to the second deed it is not necessary to determine, whether the averments of fraud are sufficient, because if the averment as to the one tract is sufficient, that gives the court jurisdiction; and it was eminently proper to bring before the
As to the statute of limitations it does not apply in this case. Section 13 of chapter 104 of the Code of 1868 provides: “ Every action upon a judgment or decree rendered in any other state or country shall be barred, if by the laws of such state or country such action would there be barred, and the judgment or decree be incapable of being otherwise enforced there.”
By the law of the State of Ohio there is no bar to an action on a judgment under twenty-one years. Ohio Revised Statutes, 1860, pp. 947, 948, 1067, ed. 1880, §§ 5367, 5368, 5380; Tyler v. Winslow, 15 Ohio St. 364. This judgment was rendered on the 29th day of April, 1856, and this suit was brought on the 17th day of June, 1869, a little more than thirteen years after.
The exception to the deposition of John F. Wortman was well taken. It has been held by this court in four cases, Hill et ux. v. Proctor, 10 W. Va. 59; Rose v. Brown, 11 W. Va. 122; Lawrence v. Du Bois, 16 W. Va. 443; Zane v. Fink 18 W. Va. 693, that the statute (twenty-second and twenty-third sections of chapter 130 of the Code of 1868) does not alter the common-law rule of evidence, that the husband and wife cannot be witnesses for or against each other, except in an action or suit between themselves; that exception was properly sustained by the circuit court.
As to the exception to the deposition of Susan Wortman it is only necessary to say, that it is immaterial whether that deposition was properly or improperly excluded by the circuit
The evidence in this case shows clearly, that the claim of the complainant has not been paid, and equally clearly, that Susan Wortman had no separate estate, out of which she could have purchased the property in controversy; that the property was purchased by him and paid for by him; and that the deed was made to her at his instance with a view to defraud his creditors. It is not necessary to refer in detail to the evidence, as it is conclusive. Whether it was a fraud in fact or not, it was certainly a voluntary conveyance, which as to an existing creditor was void.
A good deal was said in the argument of this cause as to the validity of the attachment and the pleadings thereto. I have not deemed it necessary to refer to those questions. They cannot affect the decree pronounced in the case as to the parties to this controversy ; and it does not appear, that the lights of third parties have intervened. This was the view taken by this Court in the case of Goshorn’s ex’r v. Snodgrass, 17 W. Va. 717, under similar circumstances.
I am of opinion to affirm the decree oí the circuit court with costs to the appellee and damages according to law.
Decree Affirmed.
