Cohn v. Ward

• Decision Date: 29 January 1889
• Citation: 9 S.E. 41,32 W.Va. 34
• Parties: COHN et al. v. WARD et al.
• Court: West Virginia Supreme Court

9 S.E. 41

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 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 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 occupied by said Ward in the town of Walton; (2) all the household and kitchen furniture in the dwelling-house of said Ward in the said town of Walton; (3) the cattle, horses, and other live-stock of the said Ward; and (4) all the notes, accounts, and other evidences of credits belonging to said Ward,--in trust for the following purposes: "The said trustee to take charge of the above-mentioned property, to appraise and take an inventory of the same, and take control of the store-room and the goods therein, and sell the goods in the best possible manner for the creditors of the said J. T. Ward, at private sale, for the space of six months, and at the end of said six months, in case said personal property and store goods are not sold at private sale, then the said trustee shall, after advertising for the space of thirty days, sell the said personal property at public auction. The said trustee shall also sell the said real estate, if after the space of six months thereof it shall be ascertained that the personal estate shall not pay all of the indebtedness due and owing by said Ward in the following manner, and upon the following terms: Notice shall be given of the terms of said sale by publishing in some newspaper published in Roane county. The payment shall be one-third cash in hand, and the balance in twelve and twenty-four months, respectively, in equal installments, the purchaser executing bonds for the purchase money, with approved security, and title withheld until whole of purchase money is paid; and that the proceeds of the sale of the said above-mentioned real and personal property shall be paid by said trustee to the following persons, and in the following order, and for the following purposes, to-wit: First, to pay the costs of the execution of said trust; second, J. C. Dillard the sum of one thousand dollars; third, James S. Gandee the sum of one thousand dollars; fourth, Jasper Peterson, of Lewis county, the sum of eight hundred and thirty-five dollars; fifth, Clayburn Cunningham the sum of seven hundred and fifty dollars; sixth, F. J. Daniels & Co. the sum of two hundred and fifty dollars; seventh, G. R. Jacobs the sum of thirty dollars; eighth, A. B. Wells the sum of fifty dollars; and after the above sums shall be paid in the order set out in the above manner, then the trustee shall pay the following debts pro rata with each other: MacFarland, Sanford & Co., $280; Reed & Peebles, $150; Cohn Bros., about $300; Goodrich, Peele & Co., $150; and any other indebtedness not herein expressly mentioned shall be paid pro rata with the above last-named parties. And it is further understood that in case any of the sums above mentioned shall be ascertained to be incorrect, that the said trustee shall correct the same, and pay the same according to said corrections, and the party of the first part warrant generally the property herein conveyed." On February 14, 1885, Cohn Bros. & Co., suing for themselves and other creditors of said James T. Ward, filed their bill in the circuit court of Roane county...