Davis v. Anderson

• Decision Date: 12 September 1901
• Parties: DAVIS et al. v. ANDERSON.
• Court: Virginia Supreme Court

39 S.E. 588

99 Va. 620

DAVIS et al.

v.ANDERSON.

Supreme Court of Appeals of Virginia.

Sept. 12, 1901.

CONTRACTS — CONSIDERATION — CREDITORS— MORAL OBLIGATION—PAST CONSIDERATION —CONVEYANCES—TITLE — LIEN — ENFORCEMENT—IMPEACHMENT.

1. A contract founded on a good, but not on a valuable, consideration is voluntary, and void as to creditors.

2. A moral obligation must be one which has been once a valuable consideration, but has ceased to be binding from some supervenient cause, in order to be sufficient to sustain a conveyance.

3. A past consideration, which imposed no obligation at the time it was furnished, is insufficient to support any promise.

4. Under Code, § 2459, providing that every conveyance which is not on a consideration deemed valuable in law shall be void as to creditors whose debts shall have been contracted at the time it was made, where a brother indebted to insolvency, after suit brought, devests himself of all his property by a deed to his sister, based on past services alleged to have been rendered by her for their mother, which services were not shown to have been rendered at the brother's request, express or implied, such sister takes no title.

5. A grantee in a deed, whose rights are subordinate to those of the grantor's creditors, cannot impeach the proceedings of a court of chancery to enforce a lien on the property conveyed in an independent suit, however irregular such proceedings may have been.

Appeal from circuit court, Rockbridge county.

Action by Fannie L. Anderson against Samuel A. Davis and another for the partition of certain land. From a judgment in favor of plaintiff, defendants appeal. Reversed.

J., J. L. & R. Bumgardner, for appellants.

C. S. W. Barnes, for appellee.

WHITTLE, J. In June, 1890, Lucy F. Weeks brought an action of assumpsit in the circuit court of Rockbridge county against James T. Freeman, a nonresident, and caused to be issued an ancillary attachment, which was levied July 2, 1890, upon an undivided moiety of 116 acres of land, the property of the defendant.

On July 23, 1890, Freeman executed a deed by which he conveyed his interest in the land to his sister, Fannie L. Anderson, "in consideration of the care and attention of my mother, Lucy Freeman, who has been blind for the last ten years, to me fully paid by Fannie L. Anderson, * * * the receipt of which is hereby acknowledged." This deedwas acknowledged in substantial compliance with the requirement of the statute, and admitted to record.

The defendant Freeman appeared, and pleaded to the action, and, upon the issue joined, a verdict and judgment were rendered against him at the November term, 1890.

No further proceedings were had upon the attachment, and no memorandum was left with the clerk to be recorded and indexed, as required by section 3566 of the Code.

In a suit in chancery, brought afterwards to enforce her lien, the property was sold, and purchased by the plaintiff, Lucy F. Weeks, and she, having become the owner of the other moiety, sold and conveyed the entire tract of 116 acres to appellants Samuel A. Davis and William J. Hite. Thereupon Fannie L. Anderson filed a bill in equity against the appellants Davis, Hite, and Lucy F. Weeks, in which she alleged that before Lucy F. Weeks had acquired any lien upon the undivided moiety of her brother, James T. Freeman, complainant had become the bona fide purchaser thereof for valuable consideration, and without notice, and vouched the deed of July 23, 1890, to sustain the allegation. She insisted that she was not a party to the suit in which her property was sold, and not bound by any of the proceedings therein. A paper purporting to be the answer of Davis and Hite, denying generally the allegations of the bill, was copied into the record, but seems never to have been formally filed, and was not noticed in any of the decrees in the cause.

The bill prayed for partition of the land, and that appellants be required to account to the plaintiff for the rents and profits of her moiety thereof during the time they were respectively in the possession and enjoyment of the same.

The commissioner to whom the case was referred reported that the land was not susceptible of convenient partition in kind, and ascertained the amounts for which the defendants were respectively liable to the plaintiff for its use and occupation.

Exceptions were taken by the defendant to the report, which the court overruled, and the report was confirmed. The plaintiff was declared entitled to an undivided moiety of...