Davis Sewing Mach. Co. v. Petitioner

• Decision Date: 09 April 1887
• Citation: 29 W.Va. 617
• Parties: Davis Sewing Machine Co. v. Dunbar et al.
• Court: West Virginia Supreme Court

29 W.Va. 617

Davis Sewing Machine Co.

v.Dunbar et al.

Supreme Court of Appeals of West Virginia.

Submitted January 27, 1887

Decided April 9, 1887.

March 19, 1884,

fraudulent conveyance.

A sewing machine company by its agent on March 19, 1884, made a contract with T. J. D. to sell sewing machines for it; and J. V. D., the father, gave a guaranty, that the son would faithfully pay all sums, which he might owe under said contract; and the father and his sons, T. J. D. and J. T. I)., represented, that the father was solvent and owned ninety four acres of land. The father had in 1881 made and delivered a deed for this land to said two sons, which deed was never recorded. After the above contract was made, the father and the two sons agreed, that the deed should be made for the land to J. T. D., which was done, and the deed was placed on record the day before the son, T. J. D., entered upon his duties under the contract. The said T. J. D. became indebted soon after to the company in a large sum of money and then became insolvent. Upon bill filed to subject said land to the payment of the debt, Held:

Under the circumstances of the case the scheme was to defraud the plaintiff; and the ninety four acres of land should be subjected to the payment of the debt.

Levin Smith for plaintiff in error.

Loo mis & Tavenner for defendant in error.

Johnson, President:

This is a suit in chancery brought in the Circuit Court of Wood county to set aside a deed for fraud and subject the land conveyed to the payment of the plaintiffs claim. The bill was filed in the Circuit Court of said county at September rules, 1885. The bill alleges, that the plaintiff is a corporation created and existing under the laws of New York; that on the 19th day of March, 1884, it entered into a contract with the defendant, T. el. Dunbar, whereby said corporation contracted to sell sewing machines to said Dunbar on certain terms, according to which they were to be paid for. The contract is exhibited with the bill and is in substance as follows: First that machines and other property would be packed for transportation and delivered in good order to the transportation-company in Cleveland, Ohio, by the machinecompany, after which all expenses of every kind should be paid by said T. J. Dunbar; second that said party of the second part should reasonably advertise and introduce, supply and sell all machines as speedily, thoroughly and extensively as practicable throughout Kanawha and Fayette counties, West Virginia, or such territory, as may hereafter be agreed upon between the parties; third said sewing machine company will sell its machines and attachments to said party of the second part at such prices and on such terms, as are herein named or may hereafter be agreed upon between the parties. Prices were agreed upon (Including attachments named) and are given. A number of other provisions not necessary to mention were included In the contract.

The bill further alleges, that on the same day. the 19th of March, '1884, John Y. Dunbar, now deceased, by his writing under seal guaranteed to the plaintiff the payment by T. J. Dunbar of all the indebtedness then existing, or that should thereafter be incurred by said T. J. Dunbar under said contract. The guarantee is also exhibited. The bill also alleges, that on the 6th day of June, 1884, said T. J. Dunbar being indebted to the plaintiff under said contract in the sum of $250.19 executed to the plaintiff his negotiable promissory note, dated at Pomeroy, Ohio, whereby six months after the date thereof, he promised to pay the plaintiff the sum aforesaid; and on the 21st day of June, 1884, being indebted under said contract in the further sum of $245.50 executed another note for that sum payable to the plaintiff six months after date; that neither of said notes nor any part of either has ever been paid by said T. J. Dunbar or J. V. Dunbar or either of them; that T. J. Dunbar has no property real or personal, out of which the debt can be made; that before accepting said J. Y. Dunbar as guarantor said Dunbar represented himself to him to be the owner of ninety four acres of land in Clay district, and that there was no incumbrance upon the land; that not till then did the plaintiff consent to enter into the contract with T. J. Dunbar, whereby he was made agent to sell the plaintiff's ma- chines; that not satisfied with the assurance of T. J. Dunbar and his father in regard to the said land plaintiff employed the clerk of the County Court of Wood county, where the land was situated, to examine the title thereto and ascertain, whether there were any liens on the land. The said clerk certified, that John V. Dunbar was taxed on two tracts of land aggregating ninety four acres, and that there were no encumbrances on said land; that after this, to wit, on the 2d day of June, 1881, there was admitted to record in the county of Wood a certain deed purporting to have been made by the said John Y. Dunbar on the 11th day of July, 1881, whereby he conveyed all his interest in said land to his son, J. T. Dunbar. This deed is exhibited with the bill.

The bill charges, that this deed was really not made till after the contract of suretyshii), and that it was ante-dated, in order that said John V. Dunbar's estate might not be charged with any debt or debts to the plaintiff, which might arise or might have arisen out of the contract with T. J Dunbar, and was made to hinder, delay and defraud the creditors of said John V. Dunbar; that even if said deed was made on the 11th day of July, 1881, said J. T. Dunbar has committed a fraud by secreting the same from that day to the 2d of June, 1884, and thus giving J. V. Dunbar an opportunity to obtain credit on the reputed ownership of said land, and that the land is therefore liable to J. Y. Dunbar's obligations; that besides the ninety four acres of land J. V. Dunbar, now deceased, owned no property at the time of his death; that said T. J. Dunbar and J. T. Dunbar, and the other heirs of J. V. Dunbar, deceased, as well as the administrator of the estate of the said Dunbar are made defendants. The prayer of the bill is, that said deed may be held fraudulent, and the said land subjected to the payment of the plaintiff's claim.

James T. Dunbar answered the bill denying, that he had any knowledge of the contract alleged to have been made between the plaintiff and T. J. Dunbar or of the alleged guarantee of J. Y.Dunbar; that there was any conversation with T. J. Dunbar or J. Y. Dunbar or either of them as stated in the bill; that he made any statement, as set out in the bill; that the deed recorded June 2, 1884, was either execm ted or ante-dated, in order that J. V. Dunbar's estate might not be charged with his uebts arising out of the'contract with T. J. Dunbar; that it was made to hinder, delay and defraud the creditors of said J. Y. Dunbar or the complainant, he avers, that on the 11th day of July, 1881, J. V. Dunbar was growing old, had lost his wife, had no family and was considerably indebted to various parties among others to T. J. Dunbar for work and labor done at the request of said J. V. Dunbar, and to respondent for money paid for his benefit, amounting to at least $300.00 to both; that in consideration that respondent and T. J. Dunbar would pay off and settle the indebtedness of the said J. V. Dunbar then existing and furnish him a comfortable support, etc., for life and in further consideration of his said indebtedness to said respondent and T. J. Dunbar the said John V. "agreed to sell and convey to said respondent and said T. J. Dunbar the said tracts of land;" that afterwards T. J. Dunbar seemed to grow dissatisfied with said agreement and agreed, if respondent would release him therefrom and himself carry out its x^rovisions and pay him (T. J.) $300.00, he (T. J.) would assign and release unto respondent his interest under said agreement in said property, and in consideration of $150.00 more would sell respondent a valuable horse; that said agreement with T. J. Dunbar was made about the first of February, 1884, and was complied with shortly thereafter; that after making said agreement this respondent realizing the fact, that his father was growing old requested him to, and he did, execute a deed for said property (the same deed exhibited with the bill); that the deed was executed on the 2d day of June, 1884, and was on that day admitted to record; that it was dated on the 11th clay of July, 1881, because that was the date, at which the same had, been agreed by him to be executed and because the consideration had already been paid in part as of that date; that about the 1st of July, 1883, he informed Hanley, the agent of the plaintiff, that the lands did not belong to J. V. Dunbar, and explained to him the agreement between his father and himself and T. J. Dunbar; that be told said Hanclley, that, if T. J. wanted to take an agency for selling sewing machines, he would buy out his interest in the land and give him means to help him in the enterprise. He denies, that he secreted the deed, and avers, that, when he accepted the deed of June 2, 1884, he did not know the bond of his father to said plaintiff had been executed, nor until he paid or secured the money for his brother's

interest. He further aver, s, "that since the day of,

1881, when he purchased said land of J. V. Dunbar, he has been in possession, use and enjoyment of said land as his own, has so treated and regarded it, paid taxes thereon and never heard of any objection thereto or denial of his ownership of the same.

T. J. Dunbar answered the bill, and in his answer does not deny his insolvency, admits' the indebtedness charged in the bill, and that the notes have not been paid, avers, that he told Handley, the agent of the plaintiff,...