50 W. Va. 336 | W. Va. | 1901
In the case of O. S. Wilson & Bro. v. Carrico and others from Tucker. Cowd^, being a creditor’s suit to ascertain and sell the property of said Carrico to satisfy his debts, three parties appeal as to three separate and distinct matters from a decree entered therein on the 22d day of November, 1900.
C. C. Lambert appeals because the court refused to decree in his favor for the sum of one hundred and seventy nine dollars and fifteen cents, being the one-half of a certain judgment in
Paulina, Carrico appeals because the court held the deed made to her by J. S. Carrico on the 4th day of September, 1896, fraudulent as to his creditors. J. S. Carrico does not appear to in any manner or answer the bill, but it is taken for confessed as to him. Ilis fraudulent intent in making the transfer is not denied. Her claim is that she is a purchaser for value without notice. The circuit court came to the conclusion that the facts and circumstances were such as to put her on inquiry. Farley v. Bateman, 40 W. Va. 540. If she had been a man this conclusion was certainly correct. For it is plain that J. S. Carrico was insolvent in disposing of his property as rapidly as possible. Women generally know little about these things and less about the law; yet sex does not excuse them, especially when acting under the advice and coverture of a husband. She complains that no day was given her in which to redeem. The property was not
J. -F. Carrico appeals from the decree because the court held that certain transfers of property, to-wit, one hundred and fifty bushels'of oats, value forty-five dollars, and one wagon, sixty-five dollars, 5th March, 1896, one horse, one hundred dollars, 15th April, 1896, one-horse wagon and harness, one hundred and fifty dollars, 17th June, 1896, one-half interest in crops, farming implements, three hundred dollars, August 28, 1896, total six hundred and sixty dollars, made to appellant by J. S. Carrico, was an unlawful preference, and then proceeded to pro rate the same among a large number of creditors in total disregard in part at least of appellant’s debt and of the fact that the title to the property had already been adjudicated in his favor between the same parties in legal proceedings before a justice of the peace. While the justice could determine the title to the property he has no jurisdiction to set aside an unlawful preference and pro rate the funds. Equity alone has jurisdiction to do this. Hence the justice’s judgment is not a bar to this proceeding.
While it is stretching this statute a great way to hold that it covers numerous transfers of property made to pay debts by an insolvent debtor at different times within one year from the institution of the suit, it seems to come within the meaning thereof, especially when as in this case all such transfers are made to one creditor in a comparatively short period of time. Certainly the statute cannot apply to all efforts of the insolvent to pay debts within one year prior to the bringing of the suit. If such should be the ease the insolvent could not pay either his grocer, butcher or baker, or make any effort to pay any of Ms creditors unless he pro rate among them all or the creditors must run the risk of being called in to pro rate. It is not necessary to dip farther into the meaning of this statute at the present time. The portion thereof under consideration is in these words:
“Every such suit shall be deemed to be brought on behalf of the plaintiff and all other creditors of such insolvent debtor, but the creditor instituting such suit or proceeding, together with all creditors of such insolvent debtor, who shall come into the suit
Not one of the creditors of J. S. Carrico ever came into the suit in time and united with the plaintiff and agreed to contribute to the costs and expenses, but they all failed to do so, hence they are not entitled to pro rate in this fund until plaintiff and the secured creditors, J. F. Carrico, are paid in full. At the hearing J. W. Johnston and B. M. Smith, partners as Johnson & Smith, filed an answer joining in the prayer of the bill, but they did not agree to contribute to the costs and expenses of the suit, although it may be inferred that such was their intention. The judgment, however, is amply secured as a lien on the real estate and they could not share in the personal fund until the real estate is exhausted. If there should be any balance due them after the application of the proceeds of the real estate and they insist on their right to a pro rata share of the fund they can only lie admitted thereto by sharing with the plaintiff in the costs of this appeal which would amount to much more than any dividend they could possibly receive. So they will hardly insist on the sufficiency of their answer. This consuming the whole fund, there is nothing to be pro rated among the other creditors. This must be the invariable rule, unless the property transferred exceeded the secured creditor’s debt and the attacking creditors combined. For the secured creditors being entitled to pro rate with the attacking creditors, the fund must bo entirely consumed, and there would be nothing for the general creditors, until the secured creditor is paid in full. Such being the law, the plaintiff and J: F. Carrico are the only creditors entitled to share in the fund in controversy, and to this the full amount of their claim. Plaintiff’s claims, seventy-nine dollars and two cents, one hundred and seventy-nine dollars and fifteen cents, three hundred and seventeen dollars and twenty-nine cents, amount to five hundred and seventy-five dollars and. forty-six cents. J. F. Carrico’s claims, the debt paid, six hundred and
Hence the decree complained .of insofar as it fails to decree to C. C. Lambert the sum of one hundred and seventy-nine dollars and fifteen cents in the same priority with the plaintiff’s debt of the same amount upon the tract of thirty-one and three-eighths acres, and insofar as it decrees against said Lambert and Jacob Wolford for the sum of one hundred and seventy nine dollars and fifteen cents before crediting the amount realizable from the property of J. S. Carrico, and insofar as it makes a pro rmta distribution of the fund of six hundred and sixty dollars among the various creditors and awards them execution therefor, is reversed and annulled and in all other respects it is affirmed.
Modified.