Cheuvront v. Horner
| Decision Date | 12 November 1907 |
| Citation | 59 S.E. 964,62 W.Va. 476 |
| Parties | CHEUVRONT v. HORNER et al. |
| Court | West Virginia Supreme Court |
Submitted June 6, 1907.
Rehearing Denied Jan. 7, 1908.
Syllabus by the Court.
To disqualify a judge from hearing a cause, because of his interest therein, it must appear that such interest is in the subject-matter of the cause, and not merely in a legal question involved therein.
[Ed Note.-For cases in point, see Cent. Dig. vol. 29, Judges, §§ 184-207.]
The statute (section 2, c. 133, Code 1899; Code 1906, § 4005) giving a creditor right to attack a fraudulent conveyance before judgment on his claim does not deny right of trial by jury, since such suit as therein provided for is based upon fraud, and a court of equity has jurisdiction of the subject-matter of the suit.
[Ed Note.-For cases in point, see Cent. Dig. vol. 31, Jury, § 73.]
If money has been paid to an agent for the use of his principal the legality of the action of which it is the fruit or with which it was connected does not affect the right of the principal to recover it.
[Ed Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Agent, § 160.]
The maxim "In pari delicto potior est conditio defendentis" applies only as between the immediate parties to an illegal contract, and therefore does not govern where the suit is by one of such parties to recover money received by a third party in respect of the illegal contract.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 684-689.]
The uncorroborated testimony of the husband and wife is insufficient to establish an express trust in favor of the wife in property purchased in the name of the husband against a creditor of the husband seeking to subject such property to the payment of his debt.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trusts, §§ 66-68.]
Appeal from Circuit Court, Doddridge County.
Bill by Joseph Cheuvront against William J. Horner and others. Decree for plaintiff, and defendants William J. Horner and Maggie Horner appeal. Affirmed.
J. V. Blair, for appellants.
MILLARD F. SNIDER, for appellee.
In the circuit court of Doddridge county, at the October rules, 1904, Joseph Cheuvront instituted this suit in chancery, presumably under section 2, c. 133, Code 1899 (Code 1906, § 4005), for the purpose of enforcing a claim against William J. Horner, and in pursuance of such object to set aside and cancel, as made in fraud of his rights as a creditor of said Horner, certain transfers of real estate and personal property made by said Horner to his wife, Maggie Horner.
It may be proper to make reference to the opinion of this court in the case of Cheuvront v. Cheuvront, 54 W.Va. 171, 46 S.E. 233, for a statement of the facts explaining the source of this litigation. It is useless for us to repeat them at length here. To a great extent, in the view we take of this case, they have nothing to do with it. It is there shown, as it is shown in this suit, that Joseph Cheuvront, on the 30th day of October, 1899, placed in the hands of William J. Horner the sum of $750 with which to compromise a certain divorce suit then pending between said Joseph Cheuvront and his wife, Elizabeth Cheuvront, and took his receipt for such sum, in which receipt there are certain stipulations hereinafter referred to; that said Horner went to Parkersburg, where the said Elizabeth resided, and where his wife then also resided, it being shown that there was intimacy between these two women, taking with him a contract which had been prepared by the attorney of Joseph Cheuvront, and which affected materially the rights of the wife in her husband's property, and, to use the language then employed by the parties, compromised said divorce suit; and that the said Elizabeth was induced by the said Horner and his wife to execute the same. This contract expressed a consideration of $750, but only $400 of such sum so furnished him by Joseph Cheuvront was paid Elizabeth Cheuvront by Horner, and he retained from the $750 the residue of $350, less $5 paid to the notary for taking the acknowledgment, and less the further sum of $18 afterwards paid by Horner on certain costs of said divorce suit. Subsequently, at the suit of said Elizabeth, the contract so obtained was set aside and annulled by a decree of the circuit court of Harrison county, which was affirmed upon appeal to this court, reported as aforesaid, as having been obtained by fraud upon the said Elizabeth Cheuvront. Thereupon, after the affirmance of said decree, this suit was instituted to recover back the money so placed in the hands of said Horner, and to recover the costs and expenses to which Joseph Cheuvront had been put in the suit to set aside and annul said contract. In that suit Joseph Cheuvront maintained, as he does in this suit, that whatever fraud was committed in the procurement of the execution of said contract from the said Elizabeth was the act of the said Horner and wife, and not his, and that Horner was only authorized by him to pay her the full sum intrusted to his hands for the purpose aforesaid, in case she would execute the contract, and was not authorized by him to make any other representations. Certain it is, however, that said Horners not only deceived the said Elizabeth as to the amount for which the contract called, but, to induce her to sign same, represented that her husband would immediately come and reside with her again. In fact, there is a long story connected with all this, enough of which is shown in said former opinion for the purposes of this case, and really little of which pertains to the real questions now before this court. Joseph Cheuvront was held, by the adjudication in the suit to set aside said contract, to be bound by the act of Horner, who was held to be his agent in the transactions aforesaid, and, further than setting aside said contract, the court refused to decree to him the return of the $400 paid to his wife as aforesaid, or, in legal language, to place the parties in statu quo. The reasons for this are clearly stated by the learned judge of this court through whom that opinion was handed down.
In the plaintiff's bill his claim is founded upon the receipt given him by Horner for the $750, in which writing it is expressed that the said sum is to be used in such compromise, and to be paid Elizabeth Cheuvront in case she signed the contract, and in which Horner guaranteed to return to Joseph Cheuvront said sum "in case same should be lost or any accident to same, if not paid to her upon said compromise." The bill also sets up the fact that plaintiff had, prior to the filing of the bill, instituted an action at law in said circuit court of Doddridge county upon his aforesaid claim, for $1,000, in assumpsit, against said Horner, and claims that he had office judgment, which became final and was erroneously set aside. It appears, however, that plaintiff's contention in this particular is not well founded, and that he must rest upon his right to recover in this suit. In fact, his counsel has, we infer, abandoned that contention. The plaintiff's bill also exhibits the record and opinion in said former case, which are asked to be read in connection therewith. This fact it is important to note here, as appellants insist that it is thereby disclosed that the money which Horner received from Cheuvront as aforesaid and now demanded back was paid Horner for an illegal purpose, and that therefore the law gives no action therefor. The bill further charges that, after the adjournment of the term at which said office judgment was set aside, the said Horner, on the 11th day of August, 1904, with intent to hinder, delay, and defraud plaintiff from collecting his debt, by deed of that date, conveyed to M. K. Horner, trustee, a certain lot or parcel of ground in the town of West Union, on which Horner, his wife, and family resided, and a drug store in said town, and all fixtures and appurtenances connected therewith, and the soda fountain therein, for a pretended consideration, and that, in furtherance of his purpose to hinder, delay, and defraud plaintiff, the said M. K. Horner, trustee, on the next day conveyed the whole of said property as described in said deed to Maggie Horner, the wife of the said William J. Horner. The said M. K. Horner, trustee, is shown to be the brother of William J. Horner. The bill is distinct and definite in its averments of facts constituting a fraud upon the creditors of William J. Horner, by the transfers of the property aforesaid, and, after making proper averments relative to a vendor's lien which rested upon the property, prays for a decree against William J. Horner, requiring him to pay complainant the debt in question, and that the conveyances aforesaid be set aside and declared null and void as to plaintiff's claim, and the said property sol d to satisfy the debt, and for general relief.
A demurrer to the bill was interposed in behalf of the said William J. Horner and Maggie Horner, and as ground thereof they assigned want of equity jurisdiction, multifariousness want of sufficient averments, and omissions. The demurrer was overruled, and a day given to answer. William J. Horner and Maggie Horner filed their joint and separate answer to the bill, and such answer denies the claim of plaintiff and the charges of fraud in the transfers of the property aforesaid by Horner to his wife. It admits that the $350, less the two small deductions, was retained by Horner, and claims the same as compensation for his services in getting said contract signed. It denies the right of recovery, also, in effect, upon the maxim "In pari delicto potior est conditio defendentis." The answer is definite and concise in its averments in...
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