BlLLINGSLEY v. MENEAK.

• Decision Date: 09 April 1898
• Citation: 44 W.Va. 651
• Parties: BlLLINGSLEY v. MENEAK.
• Court: West Virginia Supreme Court

44 W.Va. 651

BlLLINGSLEY

v.MENEAK.

Supreme Court of Appeals of West Virginia.

Submitted February 2, 1898

Decided April 9, 1898.

1. Fraudulent Conveyance Actions Parties Grantor.

Neither the grantor nor his assignee of the purchase money secured therein can maintain a suit to set aside a deed as made with intent to delay, hinder, and defraud the creditors of the grantee or others.

2. Fraudulent Conveyance Equity Pleading Demurrer.

Where a conveyance is attacked for fraud, the facts alleged must be sufficient to sustain such allegation, or the bill will be demurrable.

3. Equity Pleading Husband and Wife-Fraud.

A bill which seeks to subject improvements put on a wife's property by a husband, in fraud of his creditors, must allege sufficient facts to show the existence of such fraud, or it will be demurrable.

4. Equity Pleading Demurrer Decree Reversal.

When a bill contains sufficient allegations for one character of relief sought, and insufficient for others, and the circuit court overrules a demurrer thereto, and grants relief to the full extent of the prayer of such bill, this Court will reverse the decrees entered, sustain the demurrer in part, and remand the cause, with leave to the plaintiff to amend.

Appeal from Circuit Court, Marion County.

Suit by Morgan Billingsley against A. R. Menear and others. From a decree for plaintiff, defendant Fannie Menear appeals.

Reversed.

Haymond, Butcher & Hartley, for appellant.

James A. Haggerty, for appellee.

Dent, Judge:

On the 10th day of July, 1896, the circuit court of Marion county, at the suit of Morgan Billingsley, by decree declared null and void a certain deed executed by B. A. Fleming to Fannie Menear, as to certain debts of A. R. Menear, husband of the grantee. She appeals, and, among other errors, relies on her demurrer to the amended bi\ filed by plaintiff, and on which the relief was granted, and which is in words and figures as follows, to wit: "To the Honorable J. M. Hagans, Judge of the Circuit Court of Marion County, West Virginia: Humbly complaining, showeth unto your honor your orator, Morgan Billingsley, that your orator is a citizen of said county; that some time prior to the 22d day of November, 1890, one Asberry R. Menear, of said county, became and was indebted to the firm of Cunningham & Tennant for merchandise in the sum of $76.56, and the said debt so continued until the said 22d day of November, 1890, when Robert Davis, as trustee for the said firm of Cunningmam & Tennant, obtained a judgment for the amount of the said debt, together with legal interest thereon until paid, and the costs of the proceedings to recover said judgment, which costs amounted to the sum of $3.65; that the aforesaid judgment was rendered by R. L. Phillips, then a justice of the peace in and for said county; that on the 27th day of February, 1891, an execution was issued upon said judgment, which was placed in the hands of R. E. Morgan, a constable of said county, who, on the 5th day of May, 1891, returned the same to the said justice, with the indorsement thereon made, 'Execution returned no property found, May 5th, 1891. R. E. Morgan, C. M. C A transcript of said judgment and a copy of said execution has been heretofore filed in this cause, marked Exhibits 'A' and 'B, ' and prayed to be taken, read, and considered as a part of this bill. Your orator would further show that the said firm of Cunningham & Tennant and Robert Davis, as trustee for said firm, by Harry G. Linn, Esq., their attorney, on the 9th day of May, 1893, sold and assigned the aforesaid judgment to your orator for a valuable consideration, and the same is now held and owned by him, to whom the same, together with interest thereon, is due, owing, and unpaid. Your orator would further show that on the 22d day of March, 1890, the said AsberryR. Menear who Was then indebted to Elmus Hamilton in the sum of $100, made and executed his note to said Hamilton for said sum of $100, payable on or before the 1st day of April, 1891, which note was, on the 15th day of December, 1890, sold and assigned to your orator by said Elmus Hamilton for a valuable consideration, and the same is now owned and held by your orator, to whom the amount thereof is due, owing, and unpaid. A copy of said note, with the assignment thereon, has heretofore been filed with the papers in this cause, marked 'Exhibit C, ' and prayed to be taken, read, and considered as a part of this bill. Your orator would further show that on the 20th day of June, 1890, the said Asberry R. Menear made and executed his note to the First National Bank of Fairmont, West Virginia, for the sum of $500, payable in six months from the said date, upon which note T. B. Carpenter and C. B. Carney were sureties; that on the firs': day of December, 1890, your orator, at the instance and request of the said Asberry R. Menear, paid off the said note to the said bank, and lifted the same, and said note is now owned and held by your orator, to whom the amount thereof, together with the interest thereon, is now due, owing, and unpaid. A copy of the said note has been heretofore filed in th papers of this cause, marked 'Exhibit D, ' and the same is prayed to be taken, read, and considered as a part of this bill. Your orator would further show that on the 4th day of March, 1889, the said Asberry R. Menear, being then indebted to the firm of Dunnington & Co. in the sum of $36, made and executed his negotiable note to said firm for said sum, payable in ninety days from the said date thereof; that some time thereafter your orator, at the instance and request of the said Asberry R. Menear, paid off said note to the said firm of Dunnington & Co., and lifted the same, which he now owns and holds, and the said amount thereof, together with interest thereon, is now due, owing, and unpaid to your orator. A copy of said note has been heretofore filed in this cause, and is prayed to be taken, read, and considered as a part of this bill. Your orator would further show that on the 23d day of October, 1889, the said Asberry R. Menear, being then indebted to one J. W. Radabaugh in the sum of $13.34, made and executed his note to said Radabaugh for said sum, payable one day after the date thereof; that some time thereafter your orator, at the instance and request of said Asberry R. Menear, paid the said note to said Radabaugh, who indorsed the same to him, and the said note is now owned and held by your orator, to whom the amount thereof, together with interest thereon, is due, owing, and unpaid. A copy of said note, together with the indorsement thereon, has been heretofore filed in this cause, marked 'Exhibit F, ' and the same is prayed to be taken, read, and considered as a part of this bill. Your orator would further show that on the 4th day of December, 1890, the said Asberry R. Menear contracted a debt with one C. F. Fleming for the sum of $90.60; and on the 15th day of December, 1890, your orator, at the...