10 D.C. 379 (D.C.D.C. 1879), 5322, Killian v. Clark

Docket NºEQUITY.— 5322.
Citation10 D.C. 379
Opinion JudgeCARTTER, Ch. J.
Party NameJOHN GEORGE KILLIAN, ADMINISTRATOR DE BONIS NON OF WILLIAM SCHLORB, DECEASED, MARY MARGARET SCHLORB, EMMA SCHLORB, WEBELMINA SCHLORB, KATE SCHLORB, GEORGE L. SCHLORB, AND JOHN SCHLORB, v. WILLIAM E. CLARK.
AttorneyWilliam J. Miller , for complainant in bill of review. Francis Miller , for defendant.
CourtSupreme Court of District of Columbia

Page 379

10 D.C. 379 (D.C.D.C. 1879)

JOHN GEORGE KILLIAN, ADMINISTRATOR DE BONIS NON OF WILLIAM SCHLORB, DECEASED, MARY MARGARET SCHLORB, EMMA SCHLORB, WEBELMINA SCHLORB, KATE SCHLORB, GEORGE L. SCHLORB, AND JOHN SCHLORB,

v.

WILLIAM E. CLARK.

EQUITY.— No. 5322.

Supreme Court, District of Columbia.

September Term, 1879

I. Where a person conveys real estate in trust for the use of his wife, at a time when he is engaged in a prosperous business and is perfectly solvent, the law will not presume that he intended to hinder and delay a creditor whose debt was created several years after the conveyances were made. Fraud in such case is to be established by proof, and not by presumption.

II. If, however, a voluntary settlement is made at or about the time the debt is contracted, a court of equity will set it aside at the instance of the creditors.

III. A bill of review may be filed under a general rule of court announced in connection with this case, at any time within two years from the date of the decree sought to be reviewed.

STATEMENT OF THE CASE.

This is a bill of review to reverse two decrees in the original cause on the ground of error apparent on the face of the record.

The bill of review sets out fully the pleadings and proceedings in the original cause, together with the decrees and the alleged errors therein. From the record the material facts appear to be as follows:

On the 18th of August, 1858, William Schlorb executed a deed conveying lots 6 and 9 in square 654, together with the goods and chattels in the building standing on said lots, to John Killian, since deceased, in trust for the use of his wife, the said Mary Margaret Schlorb, and in case of his surviving her, the said trustee was to hold said property for the benefit of said William Schlorb. On the 23d of October, 1858, the said William Schlorb purchased lots 5 and 8 in the same square from one John B. Kibby, and directed the same to be conveyed to said Killian, upon a similar trust, for the benefit of his said wife. On the 5th day of October, 1865, the said William Schlorb purchased of one Henry J. Baker lot 2 in said square, and had the same conveyed to his infant son, George L. Schlorb; and on the 21st day of December he purchased lot 3 in said square from Thomas B. Brown, and on the 3d day of May, 1866, he purchased from one Amos P. Beedle the north half of lot 7 in said square. The two last-mentioned lots were conveyed to Killian upon the same trust as those already mentioned. On December 23, 1868, he conveyed lot 1 in said square, with certain goods and chattels described in a schedule thereto annexed, to said Killian, also on a similar trust, for the benefit of his said wife. The complainants in the original bill allege that the consideration for all these conveyances, extending from 1858 to 1868, was paid by the said William Schlorb, and the deeds taken to the said Killian and his son for the purpose of hindering and delaying creditors.

In the latter part of November, 1865, the said William Schlorb commenced dealing with William E. Clark, and on the 26th of June, 1873, a judgment was rendered in favor of said Clark for $3,819.02 against John Killian, administrator of said William Schlorb, who had previously died, upon which an execution had been issued and returned nulla bona .

The said Clark thereupon filed his creditor's bill against the parties now complainants in the bill of review, and asked that the several deeds already mentioned be declared null and void, so far as his interests were concerned, and that a trustee be appointed to sell, & c.

The answer of Mrs. Schlorb in said original equity suit denied all fraud, and, on the contrary, charged the fact to be that the greater portion of the property was transferred eight years before any dealings took place between the said William Schlorb and the said Clark, and at a time when the said Schlorb was free from debt and engaged in a prosperous business, and the only lot conveyed in trust for the benefit of his wife, after the dealings commenced, was the one transferred in 1868, and that no balance at that time was due said Clark; that the indebtedness arose subsequent to said transfer and shortly before the death of said Schlorb. In regard to lot 2, it is alleged that the transaction occurred a year before the said dealings commenced, and that Clark could not, therefore, have trusted the said William Schlorb on account of said lot, as his name was not on the land records; that in regard to all the property which had been transferred to a trustee for the use of Mrs. Schlorb, no credit could have been given to said Schlorb, as the transaction took place many years before any dealings between said Clark and Schlorb, and could, therefore, in no way have contributed to the indebtedness set up in the bill of complaint. The allegations of fraud are repeatedly denied, and it is averred that Clark is the only person to whom the said Schlorb was indebted. Guardians ad litem were appointed for the minors, and the usual answer was put in for them.

John Killian, the trustee, is dead, and the complainant John George Killian is administrator de bonis non .

Replications were filed to the answers in said equity suit, but no witnesses were examined. Two decrees were pronounced by the court, one dated February 17, 1875, setting aside the conveyances of lots 1 and 3 and the north part of lot 7 to John Killian, in trust as aforesaid. The proceeds of the sale of these lots being insufficient to pay the judgment of the said Clark, the court decreed on June 13, 1875, that all the conveyances of the other lots to Killian for the use of Mrs. Schlorb, and the conveyance to George L. Schlorb, be set aside and the premises sold, and the proceeds thereof applied to the satisfaction of said judgment.

The bill of review assigns various errors in connection with the first of these decrees, to wit, that of February 17, 1875; that at the time of the conveyances of said lots 2 and 3 and the north part of lot 7, no balance could have been found against Schlorb in favor of Clark; that Clark could not have based his transactions with Schlorb on the ground that he was the owner of said lots, because Schlorb was...

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