Decision Date23 November 1895
Citation41 W.Va. 234
CourtWest Virginia Supreme Court
1. Bastardy Proceedings Compromise Legal Considera tion Public Policy.

A note given to a woman in compromise of a bastardy proceeding is binding and valid, and on sufficient consideration, and the payment thereof can not be avoided on the ground that the compromise of such proceeding is contrary to public policy, or against public morals. Nor can the innocence of the putative father be set up as a defense against the recovery of such note, in the absence of fraud on the part of the obligee in procurement thereof.

2. Bastardy Proceedings Mother of Bastard Discharge of Accused.

Under the statutory provisions of this state, a bastardy proceeding can only be instituted by the mother of the child; and unless the county court assumes the prosecution thereof, and orders the suit to proceed in its name, she has the right to compromise and dismiss the same. Failure to regularly continue such suit from term to term, or require a renewal of his recognizance, operates as a discharge of the accused, and such proceeding can only be renewed by the mother in the manner provided by law.

3. Promissory Note Assignment.

The assignment of a promissory note carries with it all the remedies of the assignor, including the right to attack a fraudulent conveyance.

4. Husband and Wife Fraudulent Conveyance.

A conveyance of property from husband to wife, directly or indirectly, with fraudulent intent towards prior or subsequent creditors, will be held void as to such creditors.

W. S. Meredith for appellants:

I. The, demurrer to the bill should, be sustained and the bill dismissed.

Fraud is not assignable. The right to file a bill to set aside a legal instrument for a fraud committed upon the assignor is

not assignable. 5 Johns. (N. Y.) 565; 102 U&. S. 154-5; 27 A. St. R. 102; 28 A. St. R. 106-8; 88 A. D. 740; 56 A. D. 444, 447 note, 449; 2 Story Eq. Jur. § l, 040g; 1 A. & E. Ency. Law, 838; 70 A. D. 489; 1 You. & Coll. 481; 54 N W. R, 168; 94 Mich. 381; 7 Mackey, 175.

II. Husband's voluntary settlement-of-property on Ids wife is lawful $c 25 W. Ya. 242, 255, 256.

III. Assignee does not acquire the legal title to the debt, but an equitable right &c 13 VY. Ya. 718.

IY. Recording deeds, 'notice thereof 22 A. Rep. 146; 14 Id. 117; 45 Id.* 188-90; 23 A. D. 36, 47; 55 A. D. 105; 67 A. D. 360; 22 Id. 695; 70 A. I). 192.

Y. The consideration for the notes executed by Clelland to Morley was against public policy and in contravention of the statute. Code, c 80; 19 A. E. Ency. Law, 565; 2 Id. 368, &c Hutchinson's W. Ya. Treatise, § 1, 497, p. 1, 062.

YI. The bill can not be 'maintained till an execution issues on the judgment, and duly returned, after the officer has held it sixty days, "showing by the return thereon that no properly could be found from which such execution could be made" Code, c. 139, s. 7, and c. 50, s. 135.

VII. The woman cannot dismiss the bastardy proceeding without the consent of the county court, and the county court can still prosecute the case against Thomas Clelland. Code, c. 80.

VIII. The notes having been given for the debt, default or misdoing of another, does not change the rule requiring consideration, Sec 12 W. Ya. 699.

IX. Cause should have been referred to a commissioner to ascertain the personal estate of the decedent, and such personal certate exhausted before directing of the real estate. 8 W. Ya. 219; 10 W. Va. 748, ' 755; 26 W. Ya. 479; 8 Id. 480; 11 Id. 146; 83 Id. 600; 31 Id. 688.

J as. A. Haggerty for appellee:

On demurrer Coda 1891, c. 74, s. 1; 30 W. Ya. 393; Code 1891, c. 99, ss. 14, 16; 1 Young & Coll. Exch. R. 481; 1 Am. & Eng. Ency. Law, 883 n. 1, 884, n. 5; 2 Barb. Chy. 596; Code 1891, c. 80, s. 3; 12 YV Va. 837; 311(1.441.

As to no execution Code 1891, c. 183, s. 2; 19 W. Va. 78. As to fraudulent conveyances. 32 W Va, 203, 417; 37 W. Va. 396; 2 Pom.Eq. Jur. § 973, etc.; 30 W. Va. 393; 24 Id. 730; 10 Id. 87.

As to character of proof and what sufficient. 10 W. Va. 321, etc.; 17 Id. 717; 22 Id. 593; 27 Id. 206; 30 Id. 619; 35 Id. 719.

As to constructive trust. 2 Pom. Eq. Jur. § 981, etc.; 15 W. Va. 567.

As to consideration of notes. Bish. Coot. §§ 51, 83, 119, 127, 128, etc; 23 Gratt. 737; Lawson Rights Rem. and Pr. Vol. 5, § 2244.

As to referring case to Commisioner. 27 W. Va. 206.

English, Judge:

On the second Monday in September, 1865, Fontaine Smith, commissioner, sold, under a decree of the Circuit Court of Marion county, a tract of land situated in said county, containing seventy five acres and a fraction; at which sale Zackwell Clelland became the purchaser for the sum of one thousand one hundred and sixty two dollars and fifty cents paying in cash ninety five dollars and thirty six cents, and executing to said commissioner his three several bonds, with security, for three hundred and eighty seven dollars each, bearing interest in accordance with the terms of the decree of sale; and on the 29th day of May, 1867, said purchaser having complied with the terms of sale, the said Fontaine Smith, commissioner, executed and delivered a deed for said tract of land to said Zackwell Clelland.

On the 6th day of January, 1891, Thomas Clelland, a son of said Zackwell Clelland. who was then twenty six years of age, was arrested upon a charge of bastardy, upon the affidavit of Isabella Morley, which accused him of being the father of a female bastard child, of which she was delivered on the 23d of February, 1890; and on the 6th day of January aforesaid the said Thomas Clelland entered into a recognizance before a justice of Monongalia county in the penalty of three hundred dollars, with said Zackwell Clelland as his surety, for his appearance before the circuit court of Marion county, W. Va., on the first day of the next term thereof.

On the 5th day of dune, 1891, the said Zackwell Clelland executed and acknowledged a deed to Charles E. Clelland for said tract of hind, and also executed a bill of sale of all of his personal property to said Charles E. Clelland, and on the same day the said Charles E. Clelland conveyed said real estate and personal estate to Mary E. Clelland, the wife of said Zackwell Clelland, all of which conveyances were at once placed upon the records of Marion county.

On the 8th day of June, 1891, the said Zackwell Clelland went to said Isabella Morley, and compromised said bastardy case by executing to her three notes for eighty three dollars and thirty three and one-third cents each, which she afterwards assigned to one Morgan Billingsley, who, after obtaining a judgment upon one of said notes, filed a bill in said circuit court to set aside said deeds from Zackwell Clelland to Charles E. Clelland, and from Charles E. to Mary E. Clelland, the wife of said Zackwell Clelland, as fraudulent and void.

Said Morgan Billingsley, in his bill, alleged the foregoing facts as to the manner in which title to said property was acquired by said Zackwell Clelland, and how and when the same was transferred to Mary E. Clelland, and also alleged that at the time the said Zackwell Clelland went to said Isabella Morley to induce her to compromise said bastardy case, on the 8th day of June, 1891, he represented to her that his notes would be perfectly good for the amount therein mentioned, for the reason that he was the owner of said seventy five acre-tract of land, and that, confiding in his honesty and the truth of his representations, she was induced to make said compromise, and that neither he nor the said Isabella Morley had any notice of said conveyance to said Charles E. and Mary E. Clelland; that no consideration passed for said conveyance; and that the said Charles E., the nephew of said Zackwell Clelland and Mary E., his wife, conspired with said Zackwell Clelland in making said conveyance with the intent to cheat and defraud the said Isabella Morley in making said compromise of the bastardy proceedings against Thomas Clelland, the son of said Zackwell and Mary E. Clelland.

The defendants demurred to said original bill, and the said Zackwell Clelland having died, and the sheriff having been appointed his administrator, the plaintiff tiled an amended and supplemental bill making the administrator ami heirs at law defendants. Said amended bill was also demurred to, and the demurrers were overruled by the court. The defendant Mary E. Clelland answered said bills, alleging that she derived considerable personal estate from her father, amounting in the aggregate to one thousand and two hundred dollars, and that said tract of land was purchased for her at said commissioner's sale by her brother, and that the money to pay for the same was furnished by her out of her separate estate, although the deed was taken in the name of her husband, Zackwell Clelland, and that in conveying said land to her he only conveyed to her what she was entitled to; and she denied that said conveyance was made with intention to defraud any person, and put in issue all of the material allegations of the bill, and alleged that her husband, Z. M. Clelland, never owed the said Belle Morley anything, either before, at the time of, or after said notes are alleged to have been given by said Z. M. Clelland to said Belle Morley; that, if said Z. M. Clelland ever gave or executed his said notes to said Belle Morley, they were obtained by her by fraudulent representations, and are wholly without any consideration. And she charges that the said charge of bastardy, if any ever was made, brought by said Belle Morley against said Thomas Clelland, was false and fraudulent, and that said Thomas Clelland appeared to said charge and pleaded not guilty.

Thomas Clelland also answered said bill, denying that he ever authorized his father, Z. Clelland, to compromise said proceeding for him at any time, and alleging that said three notes were obtained by said Belle Morley by false and fraudulent...

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