9 S.E. 41 (W.Va. 1889), Cohn v. Ward

Citation:9 S.E. 41, 32 W.Va. 34
Opinion Judge:SNYDER, Presiding
Party Name:COHN et al. v. WARD et al.
Attorney:W. A. McCorkle, for appellant. J. G. Schilling, for appellees.
Judge Panel:ENGLISH and BRANNON, JJ., concurred. GREEN, J., absent.
Case Date:January 29, 1889
Court:Supreme Court of Appeals of West Virginia
 
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9 S.E. 41 (W.Va. 1889)

32 W.Va. 34

COHN et al.

v.

WARD et al.

Supreme Court of Appeals of West Virginia.

January 29, 1889

Submitted January 10, 1889.

Syllabus by the Court.

1. It is the settled law of this state that the recital in a deed of the payment of a valuable consideration for the property therein conveyed is not evidence of such payment as against a stranger or a creditor of the grantor assailing the deed as voluntary, and fraudulent as to him.

2. But when, in such case, the conveyance is shown to be founded upon a valuable consideration, the burden of proving that the deed is fraudulent in fact rests upon the creditor assailing it.

3. A trust deed conveying real and personal property, including a stock of store goods, is not per se fraudulent because it postpones the sale of real estate for six months from the date of the deed, and authorizes the trustee, after taking an inventory of the store goods, to take control of them, and sell the same at private sale, if that can be done in six months, and then sell the residue at public auction; in either case the sales to be in the best possible manner for the interests of the creditors of the grantor.

4. Where a trust de[32 W.Va. 35]ed secures many debts in separate classes or to different persons, the simple fact that a part of the debts secured are shown to be invalid or voluntary will not make the deed invalid as a security for other and bona fide debts secured therein.

5. The fact that a trustee in a trust deed is insolvent and untrustworthy will not, of itself, make the deed void; but in such case the court may appoint a receiver, and administer the trust according to the provisions of the deed.

Appeal from circuit court, Roane county; R. F. FLEMING, Judge.

Bill in equity by Theodore Cohn, Julius Cohn, Emil Cohn, and Abe Bloom, partners under the firm name and style of Cohn Bros. & Co., who sue for the benefit of themselves and other creditors of James T. Ward, against said James T. Ward and others, to set aside and cancel certain deeds as fraudulent and void. A decree was entered in accordance with the prayer of the bill, and James T. Ward appeals.

W. A. McCorkle, for appellant.

J. G. Schilling, for appellees.

SNYDER, Presiding.

James T. Ward and Martha A., his wife, by three several deeds, dated in October, 1883, and recorded in September, 1884, conveyed to J. C. Dillard, with general warranty, the following real estate, situate in Roane county, viz.: (1) A house and lot in the town of Walton, in and upon which the said Ward and wife then resided; (2) the store-house and lot in the same town, then occupied by the said Ward; and (3) a lot of land on the south side of Poca river, near

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said town. By three subsequent deeds, dated November 19, 1883, and recorded on September 26, 1884, the said J. C. Dillard and wife conveyed all of said real estate to Martha A. Ward, the wife of said James T.; and afterwards the said James T. Ward and Martha A., his wife, by deed dated January 31, 1885, duly acknowledged by them, and recorded February 3, 1885, conveyed to Uriah Dobbins, trustee, all the aforesaid real estate, together with all the other real and personal property owned by the grantors, the personalty consisting of (1) a stock of dry goods, boots and shoes, queen's-ware, and hardware, and clothing and all the fixtures and appurtenances in the store-house then...

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