Bowyer v. Martin et al.

• Decision Date: 06 February 1886
• Citation: 27 W.Va. 442
• Parties: Bowyer v. Martin et al.
• Court: West Virginia Supreme Court

27 W.Va. 442

Bowyer

v.Martin et al.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 1886.

Decided February 6, 1886,

(*Snyder, Judge, Absent.;

Although a deed be made for a valuable consideration, yet if the intent of the grantor in making it was to hinder, delay or defraud his creditors, the deed is fraudulent in tact as to the grantor, and also as to the grantee, if he had notice of such fraudulent intent.

W. R. Rucker for appellant.

B. F. Dennis and J. W. Davis for appellee.

Johnson, President:

The plaintiff, filed his bill in April, 1876, in the circuit;ourt of Greenbrier county against O. C. Martin, Sarah E. Martin his wife, Gamaliel Knapp and Charles A. Lowry. in which he alleges, that on March 17, 1873, he loaned to said Martin and Knapp the sum of $1,650.00 and took their bond herefor payable twelve months after date; that suit was sending on the law-side of the court to recover judgment on aid bond; that at the time of the execution ot said bond aid Martin was the owner of two valuahle tracts of land in Greenbrier county, one ot 586 acres and the other of seventy two acres that said tracts adjoined each other, and that said lands constituted nearly the whole of the estate of said Martin; that Martin resided on said land; that on February 20, 1875 said Martin and Sarah E. his wife conveyed said two tracts of land to the defendant Lowry, a brother of said Sarah E.Martin; that the consideration expressed in said deed is "$1.00 in hand paid;" that in said conveyance it is provided: "but it is distinctly understood that Sarah E. Martin, wife of.0. C. Martin, is to retain a lien upon the above land and improvements for the sum of $1,500.00, the one third of the price of said land, as her dower interest." The bill charges that said Sarah had not as yet any dower in said land; that said deed was made to hinder, delay and defraud the creditors ot said Martin and especially to defraud the plaintiff; that Lowry paid nothing tor said land and the deed was a mere sham and was made to keep the property of Martin from the just demands of his creditors; that the reservation to Sarah E. Martin was voluntary and fraudulent; that Martin has been in the exclusive possesion of the land from the time ot the making of said fraudulent deed; that he has rented the land and appropriated the rents to his own use; and that said Lowry exercises no control over said land; that Knapp, at the time the money was borrowed, and at the time said deed was executed, was wholly insolvent. The bill prays that the said deed may be declared fraudulent as to the plaintiff's claim, and the said lands be subjected to the payment thereof.

The plaintiff in 1883 filed an amended bill, in which he alleges the death of Sarah E. Martin and makes her children and heirs at law defendants, and charges that in 1882 at the November term of the circuit court of Greenbrier county in the suit at law he recovered a judgment against O. C. Martin and Gamaliel Knapp on said bond for $2,503.88 and costs of suit $179.31, and exhibits a copy ot said judgment. He also claims as a charge on said lands costs recovered by him in the Supreme Court of Appeals in said law-suit against said Martin and Knapp amounting to $129.40, and exhibits an execution therefor. The amended bill further charges, that these sums are due and wholly unpaid. It also repeats the allegations and charges in the original bill and prays, that the said deed may be declared fraudulent as to his judgment and debt, and that the lands of the defendant Martin be subjected to the payment of the same.

Martin answered the original bill denying fraud and averred that he sold the lands to Charles A. Lowry his brother-in-law, that the consideration was $2,500.00 in cashpaper, and a note from Lowry for $500.00 payable on the first day of March after the execution of the deed, and the $1,500.00 reserved to be paid to the wife of said Martin; that the $3,000.00 has all been paid to him; that the $1,500.00 remains unpaid; that this $1,500.00 was intended to be secured to his wife " for and in lieu of a certain sum of money willed to her by her brother, John H. Lowry," and to induce her to sign the deed; that her said brother, who died in 1874, left about $12,000.00 or $13,000.00 worth of property to be divided among his eight brothers and sisters, respondent's wife being one of the legatees; that said legacy had been partly received and used by defendant, and the residue assigned to him by his wife."

Lowry demurred to the original bill, and also answered the same. In his answer he denies any knowledge of the Knapp and Martin debt to the plaintiff " except from hearsay;" he knows nothing of the suit to recover said debt; admits the conveyance to him ot the land and says:" The consideration agreed upon between this defendant and the defendants O. C Martin and Sarah E., his wife, for said tracts of land was 4, 500.00, to be paid as follows, to-wit: $2,500.00 in cashpaper or in hand, and $500.00 on or before March 1, 1875, in cash or cash-paper; and $1,500.00 to be paid to the said Sarah E. Martin. The said sum of $2,500.00 was paid at the signing, sealing and delivering of the said deed in paper held by this defendant against the said O. C. Martin and others and the said sum of $500.00 was paid in cash on April 15, 1875, and October 15, 1875, as is evidenced by the receipt and bond herewith filed marked respectively Nos. 2 and 3. The said sum of $1,500.00, secured to the said S. E. Martin, wife of the said O. C. Martin by the terms of the said deed, has never been paid, and is still owing and due, and this defendant does not intend paying the said $1,500.00 until the decision of this suit, and not then, unless certain private agreements between him and the said O. C. Martin are com- plied with by the latter. The answer farther avers, that Sarah E. Martin was a legatee of her brother John H. Lowry, and that all that she had received therefrom had been used and expended by her husband; that " the said 0. C. Martin has been for several years a reckless and expensive speculator and had become very heavily in debt. And after the contract was made for the land as aforesaid between said 0. C. Martin and this said defendant the said Sarah E., wife of the said 0. C. Martin, refused to sign and acknowledge the said deed, unless and until a provision was inserted therein securing to her one third of the value of said land for and in consideration of the money and property received and expended by her said husband as aforesaid. Therefore this provision was made in the deed for her benefit."

Immediately following this averment is the following:" This defendant denies most positively that said deed from said 0. C. Martin and wife was made to him through any covin or fraud upon his part, or with any intention on his part to cheat, hinder and delay the creditors of said Martin. He denies all knowledge of any covin and fraud in the said 0. C. Martin and wife, and all notice of his or her intention to cheat, hinder and delay the creditors of said 0. C. Martin." He admits that Martin has been in possession of the lands since the conveyance, but says he was in possession under a contract, which he tiles. He says on the day the said deed was made he held the "individual paper of the said 0. C. Martin tor $1,500.00."

The contract exhibited with Lowry's answer is as follows: "A memorandum of agreement made and entered into this 12th day ot February, 1875, between 0. C. Martin of Greenbrier county, West Virginia, of the one part, and Charles A. Lowry of Fayette, West Virginia, of the other part, witnesseth: That the said O. C. Martin has this day sold the property on which he now resides to the said Charles A. Lowry, but is to live on the said property and to have the use of the whole property, and to have all that he, the said Martin, can make on said property for the term of three years; said Martin is to have the use of one yoke ot oxen, the same now on the place, one mowing machine, hay rake and one steel plow; for and in consideration of the above the said 0. C. Martin is to build a fence from Jacob A. Sarbaugh's clearing to intersect the fence at the mouth of the lane, and with the road to the gate near the still-house, and is to build a kitchen, and shed the barn all around, and the said 0. C. Martin binds himself, his heirs, &c, to give peaceable possession to the said Charles A. Lowry at the end of three years as above written." The contract is signed and sealed by the parties thereto.

Exhibits Nos. 2 and 3, referred to in the answer, are as follows:

No. 2.

" Received of Chas. A. Lowry, $2,500.00, it being the first payment on land, this 12th day of February, 1875.

" 6. C. Martin."

No. 3.

"$500.00.

" On or betore the 1st day of March next I bind myself, my heirs, &c, to pay O. C. Martin the just and full sum of five hundred dollars, it being the last payment on land, except as to dower interest ot Sarah E. Martin.

" Witness my hand and seal, this 12th day of February, 1875."

Indorsed: "Credit by cash, $500.00, April 15, 1875.

"Credit by cash, $100.00, ...