Burt v. Timmons et al

• Citation: 29 W.Va. 441
• Parties: Burt v. Timmons et al
• Decision Date: 26 March 1887
• Court: Supreme Court of West Virginia

29 W.Va. 441

Burt

v.Timmons et al

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1887.

Decided March 26, 1887.

Fraudulent Conveyance Creditor and Debtor.

The maxim " Fraud must he proven and is never to be presumed," is true, only when understood as affirming, that a contract or conduct apparently honest and lawful must be regarded as such, until it is shown to be otherwise by evidence either positive or circumstantial; but fraud may be inferred from facts calculated to establish it; and fraud should be so inferred, when the facts and circumstances are such, as to lead a reasonable man to the conclusion, that an attempt lias been made to withdraw the property of a debtor from the reach of his creditors with the intent to prevent them from recovering their just debts; and, if prima facie such fraudulent intent be thus established, it must be regarded as conclusively established, unless it is rebutted by the facts and circumstances, which are proven, (p. 450.)

Fra rdulent Conveyance Proof.

A transaction between father and child, husband and wife, brother and sister or between others, between whom there exists a natural and strong motive to provide for a dependent at the expense of honest creditors, if such transaction be impeached as fraudulent, may be shown to be fraudulent by less proof, and the party claiming the benefit of such transaction is held to a fuller and stricter proof of its justice and of the fairness of the transaction, after it is shown to he prima facie fraudulent, than would be required, if the transaction was between strangers, (p. 452.)

Fraudulent Conveyance Married Woman Burden of Proof. When a wife purchases land or other property, the burden is upon her to prove distinctly, that she paid for the land or other property with funds not furnished by her husband. Evidence, that she purchased, amounts to nothing, unless it is accompanied with clear and fall proof, that she paid for it with funds furnished

by some one other than her husband. In the absence of such proof the presumption is, that her husband furnished her with the means of payment, (p. 453.)

4. Improvements Fraud Married Woman.

Improvements put upon real property of the wife in fraud of the creditors of the husband can he followed by his creditors to the premises, where they are put; and the realty can in favor of such creditors be charged to the extent of the value of such improvments. (p. 453.)

5. Fraudulent Conveyance Proof.

A transfer of property either directly or indirectly by an insolvent husband to his wife is justly regarded with suspicion; and unless it clearly appears to have been entirely free from intent to withdraw the property from the husband's creditors, or the presumption of fraud be overcome by satisfactory affirmative proof, it will not be sustained, p. 453.)

6. Fraudulent Conveyance Married Woman.

A deed to a wife, though ever so fraudulent as to creditors of the husband, who furnished the money, wherewith the property was purchased, is nevertheless valid and binding on the grantor and on the husband, (p. 461.)

7. Fraudulent Conveyance Creditors Judicial Sale.

When such a deed is made to a wife, and the husband advances the money to pay for the land and to put improvements on it, and a creditor of the husband brings a suit to set aside such a deed as to him and to subject the land to the payment of the debt due from said husband to him. it is not required by the statute nor by the general rule on the subject, that all the creditors of the husband should be convened, and their debts reported, or that it should be. ascertained, whether the rents will pay off his debts in five years or in a reasonable time, before there can be a decree for the sale of said land. (p. 4(51.)

Statement of the case by Green, Judge:

This was a chancery-suit brought in May, 1883, in the Circuit Court of Pleasants county by William Burt to set aside as fraudulent a certain deed made on April 5, 1880, by A. C. Imlay and wife to his sister, Josephine E. Timmons, and to subject the lot thereby conveyed to the satisfaction of a judgment of the plaintiff recovered in the County Court of said county against B. B. Timmons, the husband of Josephine E. Timmons, for $173.67 with interest thereon from September 9, 1878, till paid and costs, which judgment was duly docketed in the clerk's office of said county on January 6, 1882. The consideration named in the deed was $110.00 cash. Execution was issued promptly on the judgment and was returned " no property found." The bill alleges these facts and proves them by exhibits tiled therewith. The bill further alleges, that this $110.00 was wholly paid by B. B. Timmons out of his own estate, and that no part of it was paid by his wife, Josephine E. Timmons, to whom the land was fraudulently conveyed in order to defraud the creditors other husband; and the bill prays, that B. B. Timmons and his wife, Josephine E. Timmons, and her brother A. 0. Imlay may be made defendants and be required to answer these allegations and especially to state, what separate estate, if any, Josephine E. Timmons owned; that said conveyance be declared fraudulent, and said land be sold to pay the plaintiff's judgment-lien; and for general relief.

The defendants, B. B. Timmons and Josephine E. Timmons, on June 11, 1883, tiled their joint answer, in which they deny the allegation, that B. B. Timmons either purchased or paid for the land in whole or in part. They say:" The same was paid for by Josephine E. Timmons out of some money she then had of her own, but the greater part of said sum was paid by her father and brother for her; that afterwards her father, who is a boat-builder and carpenter built her a dwelling-house on said lot; and the material used in the construction of said house wTas principally paid for by her father and brothers, who built said house for her; and not any part of said house or lot was paid for out of the estate of the defendant, B. B. Timmons." There is no allegation or statement in this answer, that Josephine E. Timmons owned any other separate estate. This answer also stated, that B. B. Timmons had paid to the plaintiff's attorney at various times $113.50 on this judgment, for winch he took receipts stated in this answer to be filed with it, but which in fact were not so tiled. This answer was sworn to by B. B. Timmons only and was replied to generally. Numerous depositions were taken by the parties.

In addition to the undisputed facts proven by the exhibits hied with the bill it was proven, that I. T. Imlay was the father of Josephine Timmons and was sixty years old, when the deed Was made to her; that he lived in St. Mary's, Pleasants county, West Virginia; that his son, A. C. Imlay, the grantor in said deed, lived in the same village, being married; that the father and all his other ehildren lived together in the same house; that the family so living together consisted ofthe father, a single daughter, probably who had been and perhaps was then teaching school, two sons and Josephine Timmons, who had intermarried with the defendant, B. B. Timmons; that said Timmons was carrying on a mercantile business in partnership with one Shoefelt in Volcano in the adjoining county of Wood; that he visited the family in St. Mary's every two or three months; that the family had no income except that derived from the daylabor of the father and the two sons, all of wrhom were rough carpenters, and perhaps from the school-teaching of the daughter; that they had accumulated but little money, which was invested in the house, in which they lived; that the money so accumulated and invested wTas earned by the younger brother and the sister, who was teaching school; that the married sister, Josephine, had no separate estate; that the married brother, A. C. Imlay, who made the deed to Josephine, was a shoe-maker and had accumulated some property; that very shortly after this lot in St. Mary's wras conveyed to Josephine, a house was built upon it worth about $1,000.00; that much the larger part of the materials, which were used in building the house, were unquestionably purchased by Josephine's husband out of his own funds and with money furnished by him.

This is unquestionable, though Timmons denied, that he furnished any of the material, and in his deposition states, that his wife refunded to him all the money, he had spent in buying materials for the house, though he does not state, where she got this money. Neither her father nor either other two brothers, whose depositions were taken, pretend, that they gave her any money to repay her husband for the money, which he expended for the materials of which the house was constructed; nor do they pretend, that she had any separate estate, from which this money came, or that any one else gave her the money. Her own deposition was not taken. Her married brother, A. C. Imlay, says:" For the bulk of the lumber, which went into this house, she gave me the money, and I bought about $150.00 of lumber for her; but I do not know, where she got this money. I bought this lumber of Jones & Haines and paid them for it by making and repairing boots and shoes." On cross-examination he says, that the amount of timber he so bought was $104.00, and he bought it of Jones & Haines, and she paid him for it. Jones in his deposition says, that Imlay bought this $104.00 of lumber of their firm and paid them for it, but says nothing about its being paid for by shoemaking. The inference from what he says is, that it was paid for in money, which seems far more probable. He says, he thinks, this was in 1879.

Her father testifies, that he and his oldest son bought the bricks for the chimney of the house, and his youngest son furnished 1, 000 shingles. The bricks cost $13.50. He says, he furnished some of the lumber, but could not say how much. On cross examination he was asked whether all the materials, which he furnished, amounted to $25.00 in value. He answered, that he could not...