Clark v. Ward

• Decision Date: 22 May 1855
• Citation: 53 Va. 440
• Court: Virginia Supreme Court
• Parties: CLARK v. WARD & als.

53 Va. 440

CLARK v. WARD & als.

Supreme Court of Appeals of Virginia.

May 22, 1855

1. W living in Virginia, determines to remove to another state and in pursuance of that purpose, leaves the place where he has resided, and proceeds directly to the place where he intends to reside. He is a nonresident of the state in the sense of the attachment law, directly he commences his removal, and before he gets beyond the limits of the state. ^[a1]

2. A deed is made conveying personal property to trustees for the purpose of paying debts specified therein; and the trustees take possession of the property and proceed to sell it for the purposes of the trust. Though the deed was not duly recorded, yet the property having been delivered to the trustees, this was a valid transfer thereof, and protects the property against the demands of creditors who had not acquired liens upon it before said transfer was consummated.

3. A creditor secured by a deed of trust with others, sues out a foreign attachment against his debtor, and seeks to subject the property conveyed in the deed, to the payment of his debt, in preference to the other creditors secured by the deed; but he fails. This does not preclude him from his right to claim under the deed his ratable proportion of the trust fund.

4. The endorsement on the process of attachment not mentioning or describing real estate, the attachment does not operate upon any such estate.^[d1]

5. The attachment is served upon trustees in a deed of trust for the payment of certain debts, and among them are the debts due to the plaintiff in the attachment. There could therefore be no surplus in the hands of the trustees until the plaintiff's debts were paid, and consequently there can be no surplus in their hands liable to his attachment.

6. The creditor having stated in his bill and proved, that his debtor had assigned to him certain railroad stocks, and a bond secured by a deed of trust, as a security for one of his debts, and the deed conveying all the debtor's stocks and debts to the trustees, though they disclaimed any right to or possession of the stocks and bond assigned to the plaintiff they are interested for the creditors, to see that the fund assigned to the plaintiff is properly applied to the satisfaction of his debt: And therefore, though there is nothing in their hands on which the attachment can operate the bill should not be dismissed; but the court should proceed to have the assigned property properly disposed of and applied; and to give the plaintiff relief according to his rights under the deed.

On the 28th of June 1853, between the hours of 10 and 11 o'clock A. M. William M. Clark sued out of the clerk's office of the Circuit court of Frederick county a subpœ na in chancery against Henry P. Ward, George W. Ward and C. Lewis Brent, returnable to the next July rules. On this subpœ na a memorandum was endorsed, by which the officer to whom it was directed was ordered to attach the debts due and to become due by the defendants George W. Ward and C. Lewis Brent to the defendant Henry P. Ward, and also any other estate of that defendant whether in his own hands or in the hands of the other defendants, so that the said defendants be restrained from paying or conveying away the debts by them owing to, or the estate or effects in their hands of, the said Henry P. Ward, until the further order of the court. The sheriff endorsed on this subpœ na, that it was received at seven minutes past 11 o'clock A. M. It was returned " executed on George W. Ward and Brent. H. P. Ward is not an inhabitant."

On the same day on which the subpœ na was sued out Clark filed his bill, in which he stated that Henry P. Ward was indebted to him in three sums of money, which he paid as security for said Ward, amounting to about one thousand two hundred dollars. That for one of these debts Ward had assigned to him as security twenty-three shares of the stock of the Winchester and Potomac railroad company, and also a claim on Alexander Clark, due by note, for about two hundred and fifteen dollars; but that neither the scrip nor the note was delivered to him at the time or since, so that he had no means of collecting the note, and the scrip could only be transferred on the books of the company by the said Henry P. Ward in person, or by his attorney in fact, or by a decree of a competent court; and by no other means could be made available.

He further stated that the said Henry P. Ward was not a resident of the state of Virginia, and that George W. Ward and C. Lewis Brent had in their possession goods, effects and estate and property of various kinds belonging to the said Henry P. Ward, and were indebted to him for money received for him sufficient to pay plaintiff's debt. And making the three parties defendants, he prayed that the goods, estate and property of Henry P. Ward in the hands of the other defendants, and the moneys due from them to Henry P. Ward, might be attached, and they be restrained from paying or conveying the same until the future order of the court; and that the said stock of the railroad company might be sold under the decree of the court for the benefit of the plaintiff; and for general relief.

The defendants George W. Ward and C. Lewis Brent answered the bill. They said that they knew nothing of the indebtedness alleged in the bill, of Henry P. Ward to the complainant, or of the alleged assignment of the railroad stock and the claim on Alexander Clark; that neither the stock nor the claim had come into their hands or under their control. That they were not aware, and therefore could not admit, that Henry P. Ward, at the time of filing the bill or the issue of the subpœ na, was a nonresident of the state of Virginia. And they denied that they or either of them then had or at the time of filing the bill had, in their possession any goods or effects, estate or property of any kind belonging to Henry P. Ward, or that they or either of them then owed or at the filing of the bill owed him for money received for him, to any amount. The bill was taken for confessed as to Henry P. Ward.

The evidence was clear that Henry P. Ward was indebted to the plaintiff as stated in the bill, and that he had assigned the railroad stock and the claim on Alexander Clark as a security for one of the debts. The proofs further show that in March 1853, Henry P. Ward was a merchant doing business in the town of Winchester; that he had become embarrassed to insolvency, and by a deed bearing date the 14th of that month, he conveyed to George W. Ward and C. Lewis Brent, the whole of his property, consisting of real estate, his interests in estates of deceased persons, all his stock of goods, debts due to him, household furniture, and any stock that might be held by him in any joint stock company, in trust, to pay a large amount of debts specified in the deed; and among these were the debts due to the plaintiff Clark. These with the large mass of debts were placed in the second class in the deed: And it was provided that the trustees should sell the real estate and goods at any and such times within six months from the date of the deed, at public or private sale, either for cash or upon such credit as they should think would best promote the interest of the creditors; and until the goods were disposed of the trustees might dispose of them at private sales, and employ an agent to conduct the store, looking only to the interest of the cestuis que trust.

This deed was admitted to record upon the following certificate, viz:

Frederick County, viz:

On the 14th day of March 1853, Henry P. Ward personally appeared before me, a justice of the peace for the county aforesaid, and acknowledged the above and foregoing deed of trust bearing date the 14th of March 1853, to be his act and deed, for the purposes therein mentioned. Given under my hand.

J. P. RIELY, J. P.

It appears that within a few days at farthest, the trustees took possession of the goods valued at about four thousand dollars, and they were sold in the month of March, April, May and up to June. That from the date of the deed up to the 28th of June, Henry P. Ward resided with N. Bent in Winchester, except for a short time, when he was absent, a part of the time in Philadelphia and a part in the county of Culpeper. That he left Winchester on the 28th of June, about 9 o'clock A. M. upon the Winchester and Potomac railroad for Philadelphia, with the purpose of residing there. That on reaching Harpers Ferry he remained there until between half past 2 and 3 o'clock P. M. when he took the cars for Baltimore, intending to go directly on to Philadelphia.

The cause came on to be heard in November 1853, when the court being of opinion that Henry P. Ward was not to be treated as a nonresident of this state at the time of the institution of the suit, decreed that the bill should be dismissed, with costs to the defendants George W. Ward and Brent. From this decree the plaintiff applied to this court for an appeal, which was allowed.

This case was elaborately argued in writing by Steger, for the appellant, and Conrad & Tucker, for the appellees.

Steger, insisted, 1st. That in the sense of the statute, Code, ch. 151, § 1, p. 600, Henry P. Ward was not a resident of the state at the time the process was issued. That having left Winchester with the purpose to settle in Philadelphia, whether he had passed beyond the limits of the state or not at the time, he was not a resident here: That imported a permanent abiding, which was not the condition of a man who was in the act of removing with the purpose not to return, but to fix his residence elsewhere. He referred to Roosevelt v. Kellog, 20 John. R. 208; the case of Wrigley, 8 Wend. R. 134; and Drake on Attachments, § 82,...