Bickle v. Chrisman's Adm'x

• Decision Date: 28 September 1882
• Citation: 76 Va. 678
• Court: Virginia Supreme Court
• Parties: BICKLE AND OTHERS v. CHRISMAN'S ADM'X, & C.

76 Va. 678

BICKLE AND OTHERS v. CHRISMAN'S ADM'X, & C.

Supreme Court of Appeals of Virginia.

September 28, 1882

Appeal from decrees of circuit court of Frederick county in two suits heard together; in first of which R. G. Bickle assignee of M. G. Harman, James A. Downing in his own right and as administrator of John D. Harman, deceased, and others creditors of John H. Chrisman, deceased, were plaintiffs, and Lucinda Chrisman in her own right, and as administratrix of said John H. Chrisman, deceased, and Holmes Conrad in his own right, and as trustee for said Lucinda Chrisman, were defendants. And in the second, which was a cross-bill filed by Lucinda Chrisman, administratrix, & c., in the same suit, against Mary W. Tuley, R. G. Bickle and others defendants. These cases are sequels to Chrisman's Adm'x v. Harman, & c., 29 Gratt. 494.

In August, 1870, John H. Chrisman, without consideration deemed valuable in law, assigned to Holmes Conrad, as trustee for his wife, Lucinda, two bonds of Davy Richey given for land sold him by Chrisman and wife, each for $6,836.61, which assignment was never recorded. In May, 1871, Conrad, trustee, invested these bonds in a farm called " Lucky Hit," for Mrs. C. In July, 1878, Chrisman having died, Bickle, assignee of M. G. Harman, and other creditors of Chrisman, whose causes of action did not accrue before March, 1877, filed their bill to subject " Lucky Hit" to payment of their debts, on the ground that the assignment of these bonds, with which the farm was acquired, was without consideration deemed valuable in law. Mrs. C. pleaded the limitation under Code 1873, ch. 146, § 16, and the circuit court held the suit of the creditors was barred; and Bickle, & c., appealed.

The remaining facts are stated in the opinion.

Barton & Boyd, for appellants.

Holmes Conrad and Byrd & Huck, for appellees.

OPINION

STAPLES, J.

It must be assumed, for all the purposes of this case, that the assignment of the bonds by J. H. Chrisman to Holmes Conrad, as trustee, for the benefit of Mrs. Chrisman, although not upon consideration deemed valuable in law, was made in good faith and without any intent to hinder or delay creditors. This is the fair inference from the pleadings in the cause, and indeed, is conclusively shown by the paper marked as Exhibit X in the record; from which it would seem that counsel, in the court below, had agreed that the assignment was to be treated as voluntary, and for that cause only to be considered as void as to creditors. This relieves the court of all difficulty growing out of the character of the assignment and of all inquiry into its merits.

It must be further assumed as uncontroverted that the bill to impeach the assignment was not filed until the year 1878, more than five years after the date of the assignment, and more than five years after the purchase of " " Lucky Hit" by Major Conrad and the execution of the deed to him as trustee for Mrs. Chrisman. The only question, then, we have to decide is, whether the statute of limitations operates as a bar to the claim of the appellants, the creditors of J. H. Chrisman.

The provisions of the statute governing the case is found in the 16th section of chapter 146, Code 1873, and is as follows:

" No gift, conveyance, assignment, transfer, or charge which is not on consideration deemed valuable in law, shall be avoided, either in whole or in part, for that cause only, unless within five years after it is made suit be brought for that purpose, or the subject thereof, or some part of it, be distrained, or levied upon, by or at the suit of a creditor as to whom such gift, conveyance, assignment, transfer or charge is declared to be void by the second section of chapter 114."

The counsel for appellants rely upon several grounds to take this case out of the operation of this section, or which, at least, as they allege, prevent or suspend the running of the limitation. One of these is, that with respect to all the claims in controversy, a right of action had not accrued to either of the appellants until more than five years after the date of the assignment; and as they brought suit within a very short time after the said cause of action had accrued, the lapse of five years does not bar the remedy. It will be seen that the point made is, that the limitation does not begin to run till there is a right of action. And this is undoubtedly correct with respect to almost all our statutes of limitation. For example, if we turn to the first section of chapter 146, we find it there provided that no person shall bring suit for the recovery of land except within a certain designated number of years after his right to bring such action shall have first accrued. And in the eighth section it is provided that any action to recover money which is founded on any award, or on any contract other than a judgment or recognizance, shall be brought within the following number of years next after the right to bring the suit shall have first accrued.

And so on, through all the numerous provisions relating to the limitation of actions, the running of the statute is made to depend upon the accruing of the right of action. The exceptions to, or departure from, this rule of limitation are found in section 17 of chapter 146, which declares that a bill to repeal a patent must be brought within ten years after its date; and in the section now under consideration relating to suits to set aside voluntary conveyances or gifts, the only case in which the provisions relating to the repeal of patents has been the subject of consideration by this court, is that of Godwin v. McClure, 3 Gratt. 291. In that case it was claimed that the patent had been obtained upon false suggestions, and circumstances were relied on to establish the existence of a trust, to take the case out of the operation of the statute. But Judge Allen said the language was express that no patent could be repealed after the lapse of ten years. It is possible that the legislature, after that period, designed to cut off all inquiry into the validity of the patent, except in cases of infancy, coverture, or the like.

If these disabilities also apply to suits under the 16th section, to set aside voluntary deeds, it is very clear there are no other restrictions upon the running of the statute?? The language is very explicit, that the conveyance, gift o?? assignment shall not be avoided, in whole or in part, unless within five years after it is made suit be brought for that purpose; or unless the subject, or some part of it, be distrained or levied upon at the suit of a creditor.

The reasons, I think, influencing the legislature in adopting this limitation, are sufficiently obvious. It had long been a controverted question among courts and judges whether a voluntary settlement upon a wife or child was good against existing debts, where the settler was at the time in a condition to make such settlement without injury to his creditors.

On the one hand, it was insisted that every voluntary assignment by a person indebted at the time is presumed to be fraudulent, and no circumstances could permit these debts to be affected by such conveyance.

On the other hand, it was said, with great force, that if a person in prosperous circumstances makes advances to his children adapted to their wants and justified by his means, leaving ample funds for the payment of his debts, there is ??o justice or propriety in treating his conduct as fraudulent ??n behalf of creditors who have delayed the prosecution of their demands until the debtor's means have been exhausted.

The former view was maintained by Chancellor Kent and Judge Stanard; the latter, by Judge Baldwin and Mr. Justice Story, with signal ability.

There is no doubt the great weight of authority, as well as of the argument, was with the last named judges. See Story E. J., § 358; Hutchison v. Kelly, 1 Robinson's Reports, ??31.

The legislature of Virginia, at the revisal of 1849 and ??850, adopted the views of Judge Stanard, and enacted the provision contained in the second section of chapter 114, Code of 1873, which declares that every conveyance, gift or assignment, not upon consideration deemed valuable in law, shall be deemed fraudulent as to existing creditors. The effect of this provision is to declare every advancement made to a wife or child void as to creditors, no matter how fairly made, how insignificant the gift, how great the fortune of the donor. And if he shall subsequently become insolvent, the property may be pursued in the hands of the wife or child and made liable to the claims of creditors?? unaffected by the lapse of time or limitation. The practical result would have been that no man owing debts could safely make a settlement upon any of his children, and n?? child could receive property from a parent in debt at the time, without being required at some remote period t?? account for it. No plans could be formed by a child wit?? reference to such property, and no credit could safely b?? given him upon the faith of its apparent ownership.

Common justice, the repose of families, and the security of property, required that some limitation should be imposed upon the rights of creditors to proceed in such cases?? And, accordingly, the legislature declared that after th?? lapse of five years, the conveyance, gift or assignmen?? should be unassailable. If the creditors of the settler o?? donor did not think proper, within that period, to asser?? their demands, they should be forever excluded.

And even though there might be some whose rights o?? action could not accrue within five years, it was deeme?? better that they should be without remedy, than that th?? parties concerned should be held liable for an indefinit?? period to the...