Bierne ct at. v. Ray et at.
| Decision Date | 28 January 1893 |
| Citation | 37 W.Va. 571 |
| Parties | Bierne ct at. v. Ray et at. |
| Court | West Virginia Supreme Court |
Bill, in Chancery Proof Pleading.
A plaintiff can no more recover without sufficient averments in his bill than he can without proof of his averments properly made; the one is as essential as the other, and both must concur, or relief will not be granted.
Biel in Chancery Answer Depositions Decree Reversal Practice.
Where a cause is brought on even by consent to be heard upon the bill and answer, and there is no replication, the answer is to be taken as true in every part of it, including also the facts stated, which are not responsive to the bill; but a decree will not be reversed for want of a replication, where the defendant has taken depositions, as if there had been a replication.
3. Fraudulent Conveyances Fraud.
Where a conveyance is made to a near relative, the fact is calculated to awakeu suspicion, and the transaction will be closely scrutinized, though the fact is not of itself sufficient to raise a presumption of fraud.
4. Fraudulent Conveyances Inadequacy of Price.
Mere proof of inadequacy of price by itself has been considered insufficient to implicate the vendee in the fraudulent intent, and inadequacy of price, unless extremely gross, does not per se prove fraud. It must appear that the price was so manifestly inadequate as to shock the moral sense, and create at once upon its being mentioned a suspicion of fraud.
5. Bill in Chancery Answer Fraudulent ConveyancesPractice.
Where a bill seeks to set aside a deed of conveyance as voluntary and fraudulent, and the grantee in his answer denies any knowledge of fraud in the transaction, in the absence of any replication to said answer such allegation will be taken to be true.
T. L. Michie and Eustace Gibson for appellants.
Marcum & Peyton for appellees, cited 11 Gratt. 782; 21 W. Va. 477; 1 Bar. Ch'y Pr. 515; Id. 530; Waite, Fraud. Con. § 232; 9 N. H. 31; 7 Watts 434.
English, President:
This was a suit in equity, brought in the Circuit Court of Cabell county by E Bierne and G. Friedman, partners doing business in the firm name of Bierne & Friedman, against Catherine Ray and William II. Smith. The object of the suit was to set aside as fraudulent a certain deed of conveyance made by the defendant Catherine Ray to William II. Smith for a certain tract of land alleged to contain thirty four acres, and to subject said tract of land to the payment of a judgment obtained by the plaintiffs against said Catherine Ray for the sum of one hundred and fifty two dollars and six cents and two dollars and seventy five cents costs, which judgment was recovered on the 11th day of March, 1890, and which was docketed on the 8th day of January, 1891.
The ground, upon which it is sought to set aside said conveyance, is that the same was fraudulent, and that no consideration passed from the defendant W. H. Smith to his co-defendant, Catherine Bay, for said thirty four acretract of land.
The bill was taken for confessed as to the defendant Catherine Bay, but the defendant W. II. Smith filed his answer in which he alleged that he purchased from his co-defendant the tract of thirty four acres of land in the bill mentioned, paying therefor one hundred and thirty six dollars, and received from his said co-defendant on the 17th day of December, 1889, a deed therefor, and caused the same to be duly recorded on the 17th day of December, 1889, in the county court clerk's office of Cabell county, and he refers to a certified copy of said deed, filed as Exhibit A with complainants' bill, and asks that the same may be considered as a part of his answer; but he denied that said tract of land was conveyed to him by his co-defendant with intent to hinder, delay, or defraud the plaintiffs or any person or persons in the collection of their debts. He also denied that said conveyance was voluntary and without consideration, and alleged that, on the contrary, he purchased said tract of land from his co-defendant in good faith, without any knowledge of her indebtedness to the plaintiffs or to any other person, and paid her therefor a valuable consideration, to wit, one hundred and thirty six dollars which was a fair cash value for said land; and that if there was any fraudulent intent on the part of his co-defendant, he had no knowledge of it whatever.
To this answer there was no replication, and as to the effect of a failure to file a replication, Barton, in his chancery Practice (volume 1, p. 398) says: "But it has been frequently held, both in Virginia and elsewdiere, that when a cause is brought on even by consent to be heard on the bill and answrer, and without any replication, the answer is to be taken as true in every part of it, including also the facts stated, which are not responsive to the bill." On page 416 of the same volume, the same author says: "While, therefore, there is no obligation upon the plaintiff to enter up a replication, and while for lack of one a case can not be reversed where the defendant has taken deposi- sitions as if there had been one, yet the effect of his failure to do so will be to cause the allegations of fact and the denials of the answer to be taken as true."
Tn Story's Equity Pleadings (section 877) the author says: "The replication is the plaintiff's avoidance or denial of the answer or defence, and in the maintenance of the bill, to draw the matter to a direct issue, which may be proved or disproved by testimony."
So in the ease of Findlay v. Smith, 6 Munf. 142, Cabell, J., in delivering the opinion of the court, says: "As the answers, however, are not replied to, the facts which they state in relation to the controversy, whether responsive to the bill or not, must be taken to be true."
The effect of the want of a replication has been considered by this Court in the case of Snyder v. Martin, 17 W. Va. 276, where it is held: "Where an answer is filed, and not replied to, the allegations therein, whether responsive to the bill or not, must be taken as true."
The fact that the bill alleges that the sale of the thirty fouracre tract of land to the defendant W. II. Smith was made with intent to hinder, delay and defraud the plaintiffs, and that said pretended sale was fraudulent, and that no consideration passed from the defendant W. II. Smith to the defendant Catharine Ray, and that said allegations remain uncontroverted by an answer, so far as said Catherine Ray is concerned, can not affect the rights of said W. II. Smith. In the answer filed by him he...
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