Crawford. v. Carper

• Decision Date: 31 January 1870
• Citation: 4 W.Va. 56
• Court: West Virginia Supreme Court
• Parties: Adam Crawford et al. v. Abraham Carper et al

4 W.Va. 56

Adam Crawford et al.

v.Abraham Carper et al

Supreme Court of Appeals of West Virginia.

January Term, 1870.

A case held to come within the provisions of the 1st section of chapter 118, of the Code of Virginia, 1860, by reason of fraud, in the suffering and obtaining a judgment.

This cause arose in Randolph county. The summons was issued returnable to August rules, 1865. The complainants were Adam Crawford, Lorenzo D. White, Rebecca Ward, administratrix of Levi D. Ward, Hoy McLean, Francis M. White, and John Scott. The defendants were Adonijah B. Ward, Abraham Carper, Nester Harding, and Matthew L. Ward. The last two defendants were only assignees of judgments, or securities for A. B. Ward.

The bill alleged that on the 16th day of April, 1861. Adonijah B. Ward was indebted to Crawford, surviving partner, &c, in the sum of 574 dollars and 60 cents, with interest thereon from October 25th, 1858, and in the further sum of 67 dollars and 51 cents, with interest thereon from November 28th, 1860, and in the further sum of 115 dollars and 93 cents, with interest thereon from August 22d, 1855, and 2 dollars and 8 cents costs, subject to a credit of 30 dollars, paid May 27th, 1856; to White in the sum of 400 dollars, with interest thereon from January 18th, 1859, subject to a credit of 30 dollars, paid April 15th, 1861; to Ward in the sum of 230 dollars, with interest thereon from December 7th, 1858, subject to a credit of 6 dollars, paid April 27th, 1861; to Scott in the sum of 360 dollars, with interest thereon from November 7th, 1859; to Rebecca Ward, ad- ministratrix, with Hoy McLean as his security, in the sum of 1100 dollars, with interest thereon from November 1st, 1861, which said debt was contracted March 2, 1861; and to other creditors in various other sums of money. And Adonijah B. Ward, being so indebted on the 16th day of April, 1861, confessed, in the clerk's office of the circuit court of Randolph county, a judgment in favor of Abraham Carper, his father-in-law, for the sum of 2, 855 dollars, with interest on 335 dollars, part thereof, from April 1st, 1838; interest on 1, 400 dollars, another part thereof, from May 1st, 1844; and interest on 1, 120 dollars, the residue thereof, from April 1st, 1848, and 4 dollars and 95 cents costs.

No bonds or other memorandums in writing were executed by Ward, or book account kept by Carper, of the several items making the aggregate sum for which said judgment was confessed. That Carper was not indebted during the period aforesaid; had three children, was worth about 30, 000 dollars, and was, at all times, boasting of his liberality to his children, and especially of his munificence to his daughter, the wife of Ward.

At the time of the confession of the judgment, Ward was the owner in fee of several tracts of land in the county of Randolph, containing in all 1, 066 acres, and some "out lands" with doubtful title and of little or no value.

In the month of June, 1865, Carper filed his bill in the circuit court of the county of Randolph, to enforce the lien of his judgment on the lands of Ward; and the appellants filed their bill, alleging, among other things, that the judgment confessed by Ward, was voluntary and was suffered by Ward and obtained by Carper, with intent to delay, hinder, and defraud the creditors of Ward, of and from the collection of their debts, and was therefore void as to them.

And the appellants, having therefore instituted proceedings at law to obtain judgments on their respective debts against Ward, asked that judgments, when obtained, might be considered on the hearing of their bill; that their judgments should be adjudged to have priority over the judgment of Carper, and that the lands of Ward might be sold in satisfaction thereof.

Ward and Carper answered the bill. Each denied all fraud and collusion in the confession of the judgment of Carper, but both disclosed that the judgment was founded on a single bill executed to Carper by Ward, on the day before the confession thereof, and that the single bill was so executed in consideration of items of an unkept account for money and property advanced by Carper, the father-inlaw, with no price fixed, or time for its payment, and commencing with the date of the marriage of Ward with the daughter of Carper, running through a period of upwards of ten years, and ending on the 1st day of April, 1848, thirteen years and fifteen days before the execution of the single bill. Each and every item of the account had been barred by the statute of limitations more than eight years before the date of the execution of the single bill.

Proof was taken and filed in the cause by complainants and defendants. In the meantime Ward died intestate, and both causes were revived against his administrator and heirs.

At the May term, 1867, of the circuit court, both of the causes came on to be heard together, and the court pronounced its decree, dismissing so much of the appellants' bill as sought to impeach the judgment of Carper for fraud; and the causes were then referred to a commissioner for a settlement of the administration accounts and report of creditors and their priorities, and other matters. The commissioner made his report; and in his report gave the judgment of Carper priority in the order of payment over each and all of the judgments of the appellants. White and another creditor excepted to the report, upon the ground that such priority had been given to the judgment of Carper while the proofs in the causes before the commissioner showed beyond question that every item of the account upon which it was claimed the judgment had been confessed was, at the time of the confession thereof, barred by the statute of limitations. The court does not appear to have passed upon the exception; and at its May term, 1868, pronounced its further decree confirming the report of the commissioner, directing a sale of the lands, and the order of the distribution of the proceeds among the creditors of the estate of Ward, giving to the judgment of Carper priority over the judgments of the appellants. The lands were sold, and the children and heirs at law of Ward became the purchasers of the 1, 066 acres at the price of 4, 700 dollars, and from this sum the dower interest of the widow of Ward was to be deducted; and by another decree of the court, pronounced at its November term, 1868, the sales were confirmed. The commissioner reported no personal assets; and at the sale, under the said decree, the entire real estate of Ward brought only the sum of 4, 862 dollars, unencumbered by the dower of the widow, she having elected to take her interest in money. At the time of the report of the commissioner, the judgment of Carper, confessed by Ward, principal and interest, amounted to the sum of 6, 728 dollars and 43 cents.

There were a great many depositions taken in the cause, on the question of fraud. The testimony of eighteen or twenty witnesses was in effect and substance, that Carper had stated in conversations held at different periods prior to 1861, that he had given from three to five thousand dollars to his son-in-law Ward, and had given him all he intended to, and that he might now shift for himself. This amount appears to have been in cattle and bonds, and the gifts were all made prior to 1848. It was proven also for the complainants, that Carper had said that he wanted to secure the property, a certain mountain farm, for the use of Ward's heirs. The statements of Ward were proven, that he had not received value for the property, and he desired to keep his property for his family, and that was the cause of his confessing the judgment to Carper; that the debts of the complainants were just, but he wanted to keep his property for his family. It was also proven for the complainants that Carper had not said anything of the indebtedness of Ward prior to 1861, and that both he and Ward had stated that the former had given the latter between 3, 000 and 4, 000 dollars. The declarations of Carper were also proven that he had given his daughter, Ward's wife, from 4, 000 to 6, 000 dollars, and that he boasted that he had done more for his daughter than any man in the neighborhood. That Ward, in speaking of his debts, did not mention any debt due to Carper; that in 1861, after the confession of the judgment, in speaking of that matter, said he had done some things that he did not like to do, that he was in trouble, and did things he did not like, to get along. That Carper stated he had given Ward a good lot of cattle when he went on the mountain farm, in 1847, that he wanted to give him a good start.

For the defendants it was proven by the wife of Ward, that the money furnished by the father-in-law, Carper, to purchase the mountain farm, was to be repaid by Ward, and the cattle were to be paid for by Ward; it was also further proven, by defendant Ward, that his first debt to Carper was for cattle and horses in 1835; his second debt for 1400 dollars, for Coyner land, and horses and cattle, in 1844, 1250 dollars of which was for the land, which in 1847, was turned by Carper into the mountain farm; the third debt was for 1120 dollars, for cattle and horses in 1848. That the mountain farm was worth, in 1861, from six to eight thousand dollars. Also by Burgess Carper, a son of defendant Carper, that Ward acknowledged the debt of Carper to be a just one, on a settlement had in 1861. That the understanding between Ward and Carper was, that if Ward could not raise the money, to wit: a certain 1, 100 dollars that he had given him at one time, that Ward was to make him a deed for the mountain land, and that land was to be conveyed to Ward's children at the death of Carper; and that Ward stated he had received large amounts of money and property from Carper over and above the debt, which Carper had made no charge for.

The other depositions taken by the defendants were of a general nature, upon other branches of the case, but did not bear so...