Core v. Cunningham et al.

• Decision Date: 05 December 1885
• Citation: 27 W.Va. 206
• Parties: Core v. Cunningham et al.
• Court: West Virginia Supreme Court

27 W.Va. 206

Core

v.Cunningham et al.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1885.

Decided December 5, 1885.

1. Transfers of property either directly or indirectly by an insolvent

husband to his wife during coverture are justly regarded with suspicion, and unless it clearly appears, that the consideration was paid from the separate estate of the wife or by some one for her out of means not derived either directly or remotely from the husband, such transfers will be held fraudulent and avoid void as to the creditors of the husband, (p. 209.)

2. A conveyance of land made by a third person to a wife, which is

fraudulent in fact, will be held void as to subsequent as well as existing creditors of the husband, (p. 210.;

3. Where the facts and circumstances connected with a fraudulent

conveyance necessarily establish complicity of the grantee in the fraudulent intent, it is not necessary by direct proof to show notice of such intent to the grantee (p, 210,)

4. A deed, though fraudulent and void as to creditors, is nevertheless

valid and binding between the parties to the fraud, which brought it into existence, (p. 210.)

5. In a suit brought to have a conveyance of land declared void as

to creditors and to subject the land to the payment of the debts of such creditors it is not required by the statute or the general law on the subject, that all the creditors of the fraudulent grantor or debtor should be convened, and their debts reported, nor that it should be ascertained, whether the rents will pay off the debts in rive years, before there can be a decree for the sale of such land. (p. 210.)

Loomis f Tairnver for appellant.

Cole $ Miller for appellee. Snyder, Judge:

Suit in equity brought in the circuit court of Wood county by A. S. Core against J. W. Cunningham and Melissa, his wife, and E. J. Knight and Martin Durkin partners as Knight & Durkin, to subject certain land to the payment of a judgement due the plaintiff, from the defendant J. W. Cunningham.

The plaintiff's bill was filed at the October rules, 1882, and alleges in substance, that J. W. Cunningham, on March 7, 1882, confessed a judgment before a justice of Ritchie county in favor ot the plaintiff for $261.96, and costs, which is unpaid; that in 1881 said Cunningham purchased from Knight k Durkin a tract of 100 acres of land in Wood county at the price of $500.00, all or the larger portion ot which he has paid to Knight k Durkin; that the deed for the land has not been made or if made has not been recorded, and it made it has been made either to the wife of Cunningham or to some person for her use for the purpose of hindering, delaying and defrauding the plaintiff and other creditors of Cunningham; that the wife had no separate estate or property to make said purchase, and that said Cunningham has been in the possession of, and using, the land as his own ever since the purchase.

All the defendants answered the bill and deny that there was any fraud in said purchase or any purpose to hinder, delay or defraud any one; that the land was in good faith sold to and purchased by the said Melissa Cunningham; that a deed was made to her for it by Knight & Durkiri on December 9, 1881, which was duly recorded in Wood county on the 28th day of said month; that at the time of the conveyance to her the said Melissa paid from her own separate funds $100.00 and gave her two notes, one for $300.00 due one day after date, and the other for $100.00 due at seven months, tor the residue of the purchase-money, and a lien was retained in the deed to secure the payment of said notes, and that said notes are still unpaid.

Replications were filed to the answers and depositions taken arid filed by the respective, parties.

On July 21, 1883, the court decreed that J. W. Cunningham should pay to the plaintiff $280.03, the amount of his judgment, and the costs of this suit, and that unless the said Cunningham or his wife should within thirty days pay said debt and costs, the land should be sold by a commissioner appointed for that purpose. The decree then proceeded to fix the liens and charges against the land as follows: First, the sum of $100.00 with interest thereon from July 9, 1882, the balance of the purchase-money due to Knight & Durkin. Second, $100.00 paid upon the purchase-money by Melissa Cunningham, and Third, the said debt and costs due to the plaintiff. From this decree the defendants, Melissa Cunningham and Knight & Durkin obtained an appeal with supersedeas.

The proofs show that sometime in June, 1881, and before the purchase of the land in controversy, the said J. W. Cunningham was paid by the United States government on account of a pension due him $750.00; that in August thereafter he loaned $300.00 of this money to T. C. Dickinson upon a note payable at ninety days with the plaintiff A. S. Core as surety thereon; that at the time of the purchase or soon thereafter he transferred this note to Knight & Durkin to be collected by them and the proceeds applied in payment of the purchase-money for the land, and that after the institution ot this suit said note was paid by the plaintiff to Knight & Durkin. Some pretense is made in the testimony of the defendants to show that this Dickinson note was not to be credited on the land purchase, but on other transactions which took place long after between Knight & Durkin and Cunningham. On this question the proof is overwhelming that the proceeds of said note were to be applied on the land purchase. There is some conflict in the testimony as to whether the husband or the wife made the cash payment of $100.00 on the land, and as to whether or not all or any part of the last note given by the wife for the land has been paid to Knight & Durkin. I am inclined to think from the testimony and all the circumstances proved in the case that the cash payment was in fact paid by the husband...