61 W. Va. 57 | W. Va. | 1906
R. A. Reese made a deed of trust conveying all his personal property including a stock of goods to Weaver, trustee, to secure a negotiable note made by Reese payable to J. A. Wiseman in ninety days at the Wirt County Bank. After this deed of trust had been executed R. L. Neale & Co. caused a writ of fieri facias to be levied on the stock of goods. Then Weaver, trustee, filed before the justice who issued the execution a petition under chapter 50, of the Code, section 152, setting up his title and claim under the deed of trust, and asking that the stock of goods be released from said execution, and asking that the right of property be tried. After trial before a justice the case went by appeal to the circuit court of Wirt county, where a jury was empanneled to try the case; but the court struck out the plaintiff’s evidence and directed a verdict for the defendant and rendered judgment thereon.
Counsel for Weaver endeavors to exclude the evidence on the ground that the bill of exceptions does not sufficiently incorporate it to bring it before this Court; but we think that the bill is ample to do so. It says that: “The certificate of evidence certified by John T. Harris, official stenographer of the circuit court of Wirt, county, is hereby certified, filed herewith, and made apart of this bill of exceptions.” We find the full oral evidence with a formal certificate by Harris that it is all the evidence given in the case. This clearly identifies the evidence.
The execution creditor claims that the deed of trust is fraudulent and void as to creditors, on its face. It is not
Another point to sustain the judgment made by counsel is this: Eeese purchased a small quantity of new goods and intermingled them with the old goods conveyed by the deed of trust. Wiseman is not shown to have consented to this.
On these principles we conclude to reverse the judgment, and set aside the verdict and remand the case for a new trial. Judge SaNDErs and I would enter judgment for Weaver as the case involves, and is dependent on, questions, of law.
Reversed.