Belcher. v. Tolliver., (No. 7033)

• Decision Date: 22 September 1931
• Docket Number: (No. 7033)
• Citation: 111 W.Va. 78
• Court: West Virginia Supreme Court
• Parties: Arthur Belcher et al. v. Hiram Tolliver et al.

111 W.Va. 78

Arthur Belcher et al.

v.Hiram Tolliver et al.

(No. 7033)

Supreme Court of Appeals of West Virginia.

Submitted September 15, 1931.

Decided September 22, 1931.

Equity

Where a court enters a final decree on a bill taken for confessed, it is error to permit an answer to the original bill setting up a defense, to be filed at a date subsequent to the adjournment of the term at which the decree is entered and thereupon set aside said decree; the proper proceeding being by original bill or petition attacking the decree.

Woods, Judge, absent.

Appeal from Circuit Court, Wyoming County.

Suit by Arthur Belcher and others against Hiram Tolliver and others. From a decree dismissing their bill, complainants Arthur Belcher and another appeal.

Decree reversed in accordance with opinion.

J. Albert Toler, for appellants. Grover C. Worrell, for appelees.

Lively, Judge:

Arthur Belcher and H. R. Ballard, plaintiffs below, complain of a decree of the circuit court of Wyoming County, entered April 20, 1931, dismissing plaintiffs' bill.

Complainants, together with A. F. Dixon, filed their bill of complaint at April, 1928, Rules, alleging that Hiram Tolliver was the owner of a tract of land, containing 77 acres, in Barkers Ridge District, Wyoming County, which had been conveyed to him by Thomas W. Godfrey on September 3, 1925; that Tolliver and his wife, Pricy, had, on October 13, 1925, conveyed the tract to a trustee to secure the payment of Hiram Tolliver's indebtedness to A. M. Umpstead; that on June 19, 1926, the land was sold under the provisions of the deed of trust to said Umpstead, who proposed to Tolliver that if he would, within a reasonable time, pay the indebtedness, he (Umpstead) would take no deed from the trustee and would give to Tolliver a deed quitclaiming all his interest in the land by virtue of said trust deed. The bill further alleges that at the time of said sale, Tolliver was heavily indebted, was unable to procure money, and his creditors were pressing him. On or about June 20, 1926, at Tolliver's request plaintiff Belcher lent to Tolliver $250.00 to enable him to pay off Umpstead and redeem the land, for which loan Tolliver, on June 25, 1926, executed his negotiable note, payable to the order of Belcher one day after the date thereof, with interest from said date until paid; that at the time, Tolliver was indebted to plaintiffs and to Huff, Andrews & Thomas Company, named in tin1 bill together with Central Trust Company, receiver, as parties defendant; and that immediately upon procuring the loan, for the purpose of defrauding his creditors, Tolliver conveyed the property on June 26, 1926, to Mary McKinney, who, on the same day, conveyed the land to Tolliver's wife, Pricy Tolliver. Plaintiffs also allege that each of them had obtained judgments against Hiram Tolliver (as had Huff, Andrews & Thomas Company and Central Trust Company, receiver,); that executions had been issued on each judgment (except that of Central Trust Company, receiver,) and the returns thereon showed no property found. Plaintiffs prayed that the two deeds of June 25, 1926, be set aside; that Hiram Tolliver be declared the true and equitable owner of the land; and that, upon a final hearing of the cause, the land be sold and the proceeds therefrom applied to the payment of judgment liens.

The suit was regularly matured; and on June 3, 1928, defendants Tolliver having made no appearance, the bill was taken for confessed, and a decree, consonant with the prayer of plaintiffs' bill, entered.

On October 19, 1928, defendants were permitted to file their demurrer and answer to plaintiffs' bill. They assign as the reason for their failure to appear that "defendant (Hiram Tolliver) was under the impression" that an attorney was preparing an answer and that he was also "under the impression" that an answer had been filed until he saw the notice of sale, provided for in the decree of June 3rd, published in the newspaper. As a basis of defense to the suit, defendants set up a resulting trust in the wife (Pricy Tolliver) in this manner: Pricy Tolliver in 1893 acquired from her father a tract of land, which tract was sold in 1918 for $1200 cash, which money was re-invested in the tract of land in controversy. (This fact is controverted in plaintiffs' replication, their claim being that the money used for the purchase of the Godfrey land was obtained by sale of certain lots in Mullens owned jointly by defendants; and in the testimony taken, Pricy Tolliver testifies that the $1200 obtained from sale of her father's property had been used to buy the Mullens lots, title to which had been jointly taken by defendants.) Defendants further answer that title to the Godfrey land was inadvertently taken by Hiram Tolliver, whereas it should have been taken in Pricy's name, and that the deeds of June 25, 1926, from Tolliver to Mary MeKinney and by the latter to Pricy Tolliver were executed to effect the true intent of defendants, who deny all charges that the said conveyances were made to defraud Hiram...