32 W. Va. 447 | W. Va. | 1889
Suit in equity brought in September, 1886, in the Circuit Court of Calhoun county by Thomas Gr. Zinn against L. P. Law and Nancy E. Law, his wife, to subject a tract of 148 acres of land in said county to the payment of a judgment for $252.68, recovered by him in said court at its June term, 1886, against the defendant, L. P. Law.
The bill avers, that the debt upon which said judgment was recovered, was contracted by said Law in March, 1882, and that at that time said Law was the owner of a steam saw-mill, engine and fixtures, and that he continued to own and operate said saw-mill, until about the time the plaintiff instituted his action at law on said debt; and that the said Law for the purpose of hindering and defrauding the plaintiff entered into a written agreement with one Mary Hays, dated November 23, 1885, by which he traded said saw-mill to said Hays for the said 148 acres of laud, and $600.00 in lumber and money, binding said Hays therein to convey said laud to his wife, the defendant Nancy E. Law; that subsequently by deed dated December, 1885, said land was conveyed to said Nancy. The bill then avers, that said conveyance was voluntary as to the said Nancy and made for the purpose of hindering, delaying and defrauding the plaintiff and other creditors of the said Law, and prays, that said land may be held liable for and sold to pay the plaintiff’s said judgment etc.
The defendant Nancy E. Law, by her answer denies, that said conveyance to her was either fraudulent or voluntary, but on the contrary avers, that she is the bona fide owner
The cause was on June 16, 1887, heard upon the pleadings, exhibits and depositions, and a decree was then pronounced by the court dismissing the bill, and from that decree the plaintiff has appealed.
The only testimony tiled by the defendants is their own depositions, in which they substantially testify to the facts set forth in their answer as above given. All the depositions are in a narrative form, and none of the witnesses were interrogated or cross-examined; but each was left free to frame his or her own statement without interference.
The plantiff, besides his own' filed the depositions of two witnesses, viz., Thomas E. Davis and George M. Ireland. The plaintiff testifies, that he knows, thatL. E. Law, the husband, bought the saw-mill and did a good deal of sawing and did the business in his own name and never mentioned his wife’s name in any of his business transactions; that he claimed the mill as his own; and also that Law told witness, that he had traded the mill for the land and had the deed made to his wife, and thus got his business in such a shape, that witness could not make anything out of him.
Davis testifies, that in the year of 1880 he sold to L. E. Law a saw-mill, engine etc., in this way : One Rollins was indebted to witness for said mill, and Law purchased it from Rollins, and wdtness took Law’s notes for what was due on the mill; that Law had purchased an interest in a grist-mill, which he traded to Leggett for about forty acres of land, and Law arranged with Leggett to have said land conveyed to witness to pay off Law’s notes for said saw-mill; that in this way Law paid for said saw-mill, and the wife of Law was not mentioned in the transaction.
Ireland testifies, that he sold to L. E. Law an interest in a grist-mill, for which he made Law a deed retaining a lien on the property for the purchase-money; that some
The foregoing is substantially all the testimony in this cause. In addition to this evidence the plaintiff relies upon the following facts to show, that the conveyance of the 148 acres of land to the wife of Law was intended to defraud the plaintiff and other creditors of L. B. Law: First, in the deed for the land to'the wife a lien is retained to secure “the peaceable and undisturbed possession of said mill-property against any incumbrances of any kind by judgment-liens or otherwise,” second, the written agreement for the exchange of the saw-mill for the land' shows, that, as it was originally prepared, the wife of Law was not named as one of the contracting parties, but that afterwards her name was interlined; and, third, the claim of the wife in her answer, that the land had been sold for taxes. These facts, it is claimed, show the conduct of the parties to. be so unusual and precautionary as to indicate a fraudulent purpose.
But, without giving any undue importance to these matters, it seems to me, that the Circuit Court erred in dismissing the plaintiff's bill. It is not denied as a general proposition, that, if a clearly valid, subsisting debt is established by a wife against her husband, he may pay it or prefer it in the conveyance of his property. But, where a husband becomes insolvent, the wife can not convert into debts, as against his creditors, former deliveries of her money or other property to him or permitted receipts by him of her income or proceeds of her separate estate, which at the time of such delivery or receipt were simply gifts intended by the wife to assist her husband in his business or to pay their common expenses of living; and considering the relation between
It would be exceedingly dangerous to permit the wife, after she has allowed her husband to use and expend her means for the common benefit of themselves and their children without any expectation of any return or the,creation of a debt, when by mismanagement or misfortune of the husband he becomes unable to pay his debts, to raise up these gifts and convert them into loans to the prejudice of creditors, and support them by her own evidence, after the creditors had trusted the husband in total ignorance of any such liability. In transactions between husband and wife, which are impeached as fraudulent, it requires less proof to sustain the impeachment, and more and stricter proof to repel it, than would be required if the transaction were between strangers. A transfer of property either directly or indirectly by an insolvent husband to his wife is justly regarded with suspicion ; and, unless it is clearly shown to be entirely free from an intent to withdraw the property from the husband’s creditors, or the presumption of fraud be overcome by satisfactory affirmative proof, it will not be sustained. The foregoing principles are fully sustained by many decisions of this Court in cases, in which they were rigidly enforced. McGinnis v. Curry, 13 W. Va. 29; Herzog v. Weiler, 24 W. Va. 199; Maxwell v. Hanshaw, Id. 405; Burt v. Timmons, 29 W. Va. 441, (2 S. E. Rep. 780); Bank v. Atkinson, ante, 175.
Assuming that the wife, Mrs. Law, acquired from her father, uncle and father-in-law, the money, as she claims in her answer and deposition, and that it was delivered to her husband and used by him in such .manner, that the proceeds or a part thereof entered into the purchase of the land in controversy, the evidence wholly fails to prove, that the money was hers after it passed into the hands of her husband. In the absence of an express contract or circum
I am therefore of opinion, that the said 148 acres of land is liable for the plaintiffs judgment, and that the decree of the Circuit Court must be reversed, and the cause remanded for further proceedings in accordance with the principles announced in this opinion.
REVERSED — REMANDED.