Central Trust Co. v. Feamster
| Decision Date | 29 April 1941 |
| Docket Number | 8967. |
| Citation | 14 S.E.2d 619,123 W.Va. 250 |
| Parties | CENTRAL TRUST CO. et al. v. FEAMSTER et al. |
| Court | West Virginia Supreme Court |
Joseph J. Madden, of Elkins, for appellants.
J W. St. Clair and Peyton & Winters, all of Huntington Brown, Jackson & Knight, of Charleston, and W. H Sawyers, of Hinton, for appellee.
This is a suit by Pattie Feamster, surviving executrix of the last will and testament of S.W. N. Feamster, and in her own right against Wayland Feamster and others for the collection of the balance due on a judgment in favor of the plaintiff, as such executrix, and against Wayland Feamster, in the amount of $13,655.77, and costs, rendered January 18, 1935, in another suit.
The bill alleges the recovery of this decretal judgment against Wayland Feamster for misfeasance while he was co-executor with Pattie Feamster, under said will; the docketing of abstracts thereof in both Logan and Greenbrier Counties; the ownership by the defendant, Wayland Feamster, of an undivided interest in a tract of 500 acres of land situate in Greenbrier County, one-tenth of which tract was devised to said defendant by his father, and the residue of his interest therein purchased from other devisees, and the undivided one-tenth of one-third interest in 2,700 acres of land in Logan County, devised to him by his father, as well as four parcels situate in Greenbrier County, acquired by him through purchase; and the issuance of an execution on said judgment directed to the sheriff of Greenbrier County and a return thereof nulla bona.
The bill also charged that pending the suit in which the judgment was obtained, the defendant, Wayland Feamster, conveyed all his interest in the Logan County land to the defendant, Theresa Trimboli, his wife's sister, without consideration, and with intent to hinder, delay and defraud the estate of S.W. N. Feamster and other creditors of Wayland Feamster, in which fraud, the said grantee is alleged to have participated.
The Utilities Coal Company, a corporation, is made a defendant for the reason that it is the holder of a coal lease on 1,179.4 acres of the Logan County land, and Del Carbo Coal & Coke Company, a corporation, is likewise made a defendant by reason of its having a lease on 243.91 acres of the Logan County land, an injunction being asked against said lessees to prevent their paying any royalties under their respective leases to Theresa Trimboli pending this litigation.
It also appears from the bill that the royalties from these two coal leases were, by agreement between the widow and devisees of S.W. N. Feamster, collected by the executors of his will. The prayer is that the deed from Wayland Feamster to Theresa Trimboli be set aside and held for naught so far as the plaintiff's claim is concerned, and that the real estate attempted to be conveyed thereby and all other real estate owned by the defendant, Wayland Feamster, "may be held subject to" the plaintiff's judgment; that the defendant coal companies be restrained from paying royalties to Theresa Trimboli pending the suit, and for general relief.
The defendant, Theresa Trimboli, answered, denying categorically all charges of fraud on her part in the procurement of the deed from Wayland Feamster; that the conveyance was without consideration, or that she had any knowledge of plaintiff's judgment or any fraudulent intent on the part of Wayland Feamster in the execution of the deed. This answer also asks that the plaintiff account to respondent for all royalties received from the defendant coal companies since the date of her deed, and insists that all other real estate of Wayland Feamster be exhausted first before the plaintiff is permitted to proceed against the real estate attempted to be conveyed to her.
The Utilities Coal Company answered, disclaiming all interest in, or knowledge of, the matters in controversy, and showing that it had paid to Pattie Feamster, as executrix, and Wayland Feamster, as executor of the will of S.W. N. Feamster, since the date of said deed, royalties in the aggregate amount of $24,150, and that at the time of answering, it held the sum of $1,458.45, representing Wayland Feamster's interest, to be paid to such persons as the court may direct.
The Del Carbo Coal Company also answered, denying any interest in, or knowledge of, the matters in controversy, showing that it had paid to the executors of said Feamster will since the date of the Trimboli deed the sum of $1,926.82, and that it still held in its hands to be paid to the owners of the Wayland Feamster interest as the court may direct the sum of $94.42.
Pending this suit, Pattie Feamster was legally discharged as executrix of her father's will, and the Central Trust Company, a corporation, appointed in her stead, which thereupon appeared by counsel, other than those who represented the original plaintiff, and was made plaintiff in lieu of the original executor.
The regular judge of the Circuit Court of Greenbrier County was disqualified, and the cause was heard and determined by a special judge. Evidence was taken before the special judge, and a decree pronounced setting aside the deed from Wayland Feamster to Theresa Trimboli as to plaintiff's judgment, and fixing the amount of the same, after allowing the credit of $2,955.20, including interest, to February 15, 1939, at $13,575.53, and decreeing the defendant, Wayland Feamster, to be the owner of one-fifth undivided interest in the 500-acre farm in Greenbrier County, and the owner of five other parcels of real estate in the same county; and decreeing the said judgment to be a lien on all of the said real estate so found to be owned by Wayland Feamster, including the undivided one-tenth of one-third of the said 2,700 acres in Logan County. The decree directed the sale of all this real estate by a special commissioner, appointed for that purpose, at the front door of the courthouse of Greenbrier County, after advertisement of the time, terms and place of sale, for four successive weeks prior thereto in some newspaper published in that county. By the decree, also, the defendant, Theresa Trimboli, was directed to be repaid the sum of $80, without interest, found to be the full consideration paid by her for the fraudulent conveyance; directed the defendant coal companies to pay all accumulated and unpaid royalties to the personal representative of S.W. N. Feamster, and dismissed the pleading of the defendant, Theresa Trimboli, in so far as it constituted a cross-bill or an answer for affirmative relief.
Wayland Feamster and Theresa Trimboli obtained this appeal. On behalf of the appellant Feamster, errors are assigned as follows: (1) That the court did not refer the cause to a commissioner in chancery to ascertain his real estate and the liens thereon; (2) that the court found without pleading or proof that his real estate would not discharge the judgment and the costs of the suit within five years; (3) that the court did not ascertain the credits to which he was entitled by reason of coal royalties in the hands of the successive executors of S.W. N. Feamster; and (4) that the court decreed the sale of the Logan County real estate in Greenbrier County. Theresa Trimboli assigns as error (1) the cancellation of her deed from Wayland Feamster; (2) that the court did not require the other real estate of Wayland Feamster to be exhausted before sale of that conveyed to her; (3) that the court dismissed her cross-bill, praying for an accounting for rents and royalties during the time she held the deed in question; and (4) that the court directed unpaid royalties from the coal lessees to be paid to the plaintiff.
At the threshold of this case, we are confronted with a disagreement between counsel for the plaintiff and the appealing defendants as to the character of this suit. Counsel for the plaintiff insists that it is in substance and effect merely a suit to set aside the deed from Wayland Feamster to Theresa Trimboli for Feamster's Logan County real estate, while counsel for defendants insist that the proceeding is a judgment lienor's suit, in which the setting aside of this fraudulent conveyance to certain tracts of real estate involved is merely an incident.
If we adopt the view that this is a suit solely to set aside a fraudulent conveyance of real estate and to subject to the plaintiff's debt the real estate attempted to be conveyed, this suit must wholly fail, for the reason that the suit is brought in Greenbrier County, while the real estate involved is situated in Logan County. Code, 56-1-1, provides that:
This Court has uniformly construed this statute to require suits regarding the title to real estate to be brought in the county in which the real estate is situate. Tennant's Heirs v. Fretts, 67 W.Va. 569, 68 S.E. 387, 29 L.R.A., N.S., 625, 140 Am.St.Rep. 979; Wayland Oil & Gas Co. v. Rummel, 78 W.Va. 196, 88 S.E. 741; Wirgman v. Provident Life & Trust Co., 79 W.Va. 562, 92 S.E. 415, L.R.A.1918E, 715; Anderson v. Stockdale, 93 W.Va. 657, 117 S.E. 553; Life v. Rugged State Development Co., 107 W. Va. 33, 147 S.E. 31. Moreover, if it were such a suit and the court had jurisdiction, the final decree would be erroneous in that it brings in and decrees the sale of other real estate. The suit and the final decree must be sustained, if sustained at all, upon the theory that this is a judgment lienor's suit.
Only two shortcomings in the bill are suggested as preventing its being...
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