Casto v. Fry et al.

• Decision Date: 30 January 1890
• Citation: 33 W.Va. 449
• Court: West Virginia Supreme Court
• Parties: Casto v. Fry et al.

33 W.Va. 449

Casto

v.Fry et al.

Supreme Court of Appeals of West Virginia.

Submitted January 22, 1890.

Decided January 30, 1890.

1. Fraudulent Conveyances Evidence Declarations of Grantor.

It is well settled that the declarations of a grantor, made subsequent to the conveyance, are not admissible to affect the title of his grantee; certainly if made a year subsequent.

2. Fraudulent Conveyance Evidence.

When a deed is assailed by third parties on the ground of fraud, it is admissible to show, in addition to the consideration expressed in the deed, that a substantial and valuable consideration was paid, or the converse.

3. Fraudulent Conveyance Notice

A worthless husband, indebted to insolvency, in pursuance of an agreement that his wife would abandon her purpose to sue for a divorce, and that she and her sons would pay certain specified debts of the husband, which he asserted and they believed were all he owed, amounting to over $800.00 conveyed to a third person, who on the same day conveyed to the wife, real estate worth from $600.00 to $800.00. The wife and sons at the time assumed to pay, and afterwards, in good faith and without notice of any fraud, did pay off said debts. Held: The said conveyance is valid as against the creditors of the husband whose debts existed prior to and at the time of the conveyance, but of which the wife had no notice,

C. E. Hogg for appellant.

Simpson $ Howard for appellees. Snyder, President:

Appeal from a decree of the Circuit Court of Mason county rendered February 24, 1882, in the suit of James N. Casto against Henry Fry, Stephen Thomas, and Martha E., his wife, Rankin Wiley, and others.

So much of the facts and proceedings as are necessary for the comprehension and decision of the questions presented by this appeal are as follows: In the year 1876 the plaintiff and the defendant Stephen Thomas became the sureties of the defendant Henry Fry on his official bond as constable of one of the districts of Mason county. In 1879 the said Fry became a defaulter, and in 1880 the plaintiff, as one of his sureties, was compelled to pay for him sundry claims, amounting to about $300.00. When the defendant Stephen Thomas executed said official bond as surety for Fry, he was the owner of a house and lot in the town of Hartford City, in Mason county. Afterwards, in August 21, 1878, be and his wife conveyed this house and lot to Rankin Wiley, and Wiley on the same day conveyed the same to Martha E. Thomas, the wife of said Stephen. The consideration recited in each of these deeds is one dollar. In February, 1881, the plaintiff'exhibited his bill, in which he stated the foregoing facts, and averred that the aforesaid conveyances were made without any valuable consideration and for the purpose of hindering, delaying and defrauding the plaintiff and other creditors of the said Stephen Thomas; that the said Thomas and Henry Fry were insolvent; and prayed that said conveyances might be declared void as to the debt due the plaintiff from said Thomas, and the said house and lot subjected to the payment thereof.

The defendants Thomas and wife filed their joint answer, denying that the said conveyances were made without a valuable consideration, or with the intent to hinder, delay or defraud the plaintiff or any one else, or that there was any notice of any fraudulent intent whatsoever on the part of the defendants, Wiley and Martha E. Thomas. Depositions were taken by both parties, and the court by its decree dismissed the bill as to the defendants, Thomas and wife, to Wiley, and the plaintiff appealed to this Court.

The depositions prove that the defendant, Stephen Thomas, was in the habit of drinking, and often making himself very disagreeable to his wife and family, and on account of his bad conduct his wife had determined to sue for a divorce and alimony; that he had two sons grown who were industrious, and received good wages for their work; that from supplies furnished by them their mother kept boarders; that the husband had for several years been engaged in no regular business, but occasionally did odd jobs of butchering and some trading; that he did nothing to support his family, but, on the contrary, by has bad...