Crowder v. Crowder

• Decision Date: 12 June 1919
• Parties: CROWDER v. CROWDER et al.
• Court: Virginia Supreme Court

99 S.E. 746

CROWDER

v.CROWDER et al.

Supreme Court of Appeals of Virginia.

June 12, 1919.

Appeal from Circuit Court, Lunenburg County.

Suit for divorce and to set aside fraudulent conveyance by Lavonia Rutb Crowder, by, etc., against W. Scott Crowder and others. From the decree, complainant appeals. Reversed and remanded.

N. S. Turnbull, Jr., of Victoria, and W. Moncure Gravatt, of Blackstone, for appellant.

L. O. Wendenburg, of Richmond, Geo. E. Allen, of Victoria, and W. R. Jones and L. S. Epes, both of Blackstone, for appellees.

BURKS, J. This is a suit for divorce on the ground of desertion, brought by Lavonia Ruth Crowder against her husband, W. Scott Crowder and incidentally to set aside as fraudulent the sale of certain real estate made by the husband to his brother J. N. Crowder, and of a stock of shoes to his brothers J. N. Crowder and W. A. Crowder. The husband was a nonresident of the state, and was proceeded against by order of publication. He has never in any way appeared in the cause. Pending the suit, the amount agreed to be paid for the land and shoes was paid into court, under an order requiring it.

There was a preliminary motion to dismiss the appeal on the ground that the decree appealed from was not final, nor did it adjudicate the principles of the cause. It is very clear that the decree was not final, as the divorce prayed for had not been granted. The decree, however, contains the opinion of the court "that J. N. Crowder and W. A. Crowder were guilty of no fraud" in the purchases aforesaid from their brother W. Scott Crowder, and "that the fund to the credit of the court arising from the proceeds of said notes was the property of W. Scott Crowder, and as such should be paid over to Lavonia Scott Crowder as and for alimony, " but for the pending claim of J. J. McFeeley, who had been impleaded in the cause and claimed said proceeds as hereinafter set forth. This was an adjudication of all the questions raised by the complainant's bill. She claimed that she was entitled to a divorce on the ground of desertion by her husband, and this claim was in effect sustained. She further claimed that the sales from her husband to his brothers was in fraud of her marital rights, and that she had the right to have them set aside and the property subjected to her demands, This claim was overruled, and the sales declared to be free from fraud. As we shall see later, McFeeley was improperly impleaded in the cause, and it should have been dismissed as to him. It is unnecessary to cite authority to show that the decree appealed from did adjudicate the principles of the cause. The motion to dismiss will therefore be overruled.

The fraud of W. Scott Crowder on the

marital rights of his wife is too fully established to admit of controversy, and no effort has been made to deny it. The chief controversy has been over the participation therein of his brothers W. A. Crowder and J. N. Crowder.

Section 2458 of Code 1904 declares that every gift, conveyance, assignment, or transfer, etc., made with intent to hinder, delay, or defraud creditors, purchasers or other persons of or from what they are or may be lawfully entitled to, shall, as to such creditors, purchasers or other persons, be void. It further provides that the title of a purchaser for valuable consideration shall not be affected unless it appear that he had notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor. We shall inquire, therefore, whether W. A. Crowder and J. N. Crowder come within the purview of this section. That they are purchasers for value is admitted, but that they are without notice of the fraud of W. Scott Crowder, from whom they purchased, is denied. The statute in terms applies to transfers of personal as well as real estate.

The complainant, a girl 18 years of age, who had been reared in the country, came to the town of Victoria on a visit to her cousins in July, 1914, and while there was employed by W. Scott Crowder, a man about 30 years of age, as a clerk in his shoe store, and began work September 1, 1914. She continued in this employment till March, 1916, when she was forced to give up her employment because she was about to become a mother. She informed W. Scott Crowder of her condition, and he said they would get married, but requested that she should say nothing about it. Later on, when she again mentioned the subject to him, "he said he was sorry, and if he married his people would turn him down, and he did not know what to do." On Saturday, April 8, 1916, she gave birth to a child, and on the same day a license was procured, and they were married. It may be conceded that the marriage was forced, or, as W. Scott Crowder told his sister-in-law a few days later, it was a case of "bloodshed or marriage."

While the testimony does not show that either of the brothers counseled or advised W. Scott Crowder to abandon his wife, the circumstances tend strongly to show that he had no intention of leaving her until after the conversation hereinafter mentioned with W. A. Crowder on Thursday night before he left, and that W. A. and J. M. Crowder, with full knowledge of his abandonment of his wife and child, did aid and abet him in putting his property beyond the reach of any claim the complainant might assert against it.

The marriage took place on Saturday, April 8, 1916. From that time till the following Thursday he appears to have been attentiveto his wife, bringing her fruits and flowers, coming to her room immediately upon returning from his mail route, discussing with her their future location, endeavoring to obtain board for both of them, seeking to rent a house, acknowledging the child to be his, and saying to the nurse that "he expected to make a man out of him." On Thursday night following the marriage, however, about 10 or 10:30 o'clock, after he had retired and gone to sleep at the house where his wife was confined, his brother W. A. Crowder called and had him waked up, and they had a conversation of at least an hour. The next day his whole attitude towards his wife had changed. He declared that he could not stand her, that the child was not his, and he would not stay and take care of it, and announced his firm determination to leave Victoria if he lost every dollar he had, notwithstanding he was advised by his counsel of the danger of being indicted for deserting his wife. He then set about arranging the sale of his stock of goods to his two brothers and of his real estate to one of them. His stock of goods consisted of shoes. He proposed that these should be inventoried at cost, and that his brother W. A. Crowder should take the men's shoes at the inventory value, and his brother J. N. Crowder should take the ladies' shoes at the inventory value. His real estate consisted of a storehouse and lot and a vacant lot. These he valued at $8,500, There was a mortgage on the storehouse lot of $4,000, and he was indebted to his brother J. N. Crowder in the sum of $1,500. He proposed that his brother J. N. Crowder should assume the mortgage of $4,000, cancel his debt of $1,500, and execute his negotiable note for $3,000, on 12 months' time, and he caused to be prepared and executed the day before he left a deed conveying the real estate to the said J. N. Crowder, on the above terms, without reserving any lien for the $3,000. Thig deed was left with W. A. Crowder, to be delivered by him to his brother J. IN. if he should accept the proposal. If the brothers accepted the proposed sale of the shoes, they were to execute their negotiable notes therefor at 12 months' time, with interest from date. These proposals were made after he had abandoned his wife, and, if accepted, the notes of the purchasers were to be forwarded to Scott Crowder at an address to be thereafter furnished by him. After Scott Crowder had gone, J. N. Crowder was communicated with and came to Victoria, and the offers of Scott were made known to him by his brother W. A. Crowder. The offers to both brothers were accepted, the goods were inventoried, and they executed their negotiable notes therefor bearing date April 26, 1916, just 11 days after his departure, and forwarded them to W. Scott Crowder at St. Louis, Mo., in accordance with an address furnished by him. He furthermore stated when the proposals were made that he would endeavor to discount the notes with some one who would indulge them, further in the event they were unable to pay the notes at maturity. These notes were executed by the makers with full knowledge that Scott Crowder had abandoned his wife and left the state, and that their notes were to be discounted. The testimony shows that W. A Crowder had actual knowledge of all the circumstances of the marriage and abandonment, and the reasons therefor, and the attending cirumstances plainly indicate that this knowledge was communicated to J. N. Crowder before the notes were executed.

W. Scott Crowder left Victoria on Saturday morning, April 15, 1916, just one week after his marriage, having first withdrawn all the money he had in bank, to wit, $500. When he received his brothers' notes, executed under the circumstances hereinbefore stated, he had in his pocket his entire estate. Nothing was left for his wife and child. Upon this state of facts, the conclusion seems irresistible, not only that W. Scott Crowder committed a fraud upon the rights of his wife and child, but that his brothers participated therein and aided and abetted him in the accomplishment of his purpose.

While fraud must be clearly proved by him who alleges it, it is not necessary that it should be expressly...