Elacksiiire v. Pettit.

• Decision Date: 14 November 1891
• Citation: 35 W.Va. 547
• Court: West Virginia Supreme Court
• Parties: Elacksiiire v. Pettit.

35 W.Va. 547

Elacksiiire

v.Pettit.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1891.

Decided November 14, 1891.

Decided November 14, 1891.

1. Fraudulent Conveyances-Consideration Burden of Proof

Possession Knowledge of Fraud.

Under our statute against fraudulent conveyances, etc., Code, 1891, c. 74 a bona fide purchaser for valuable consideration, who had no notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor, is protected.

2. Fraudulent Conveyance Purchaser Consideration.

When the plaintiff has shown that the conveyance was made by the grantor with intent to delay, hinder or defraud creditors, then the grantee must meet this by showing that he was a purchaser for value, and without notice of the fraudulent intent of his grantor; and the recital in the deed of the payment of the purchase-money is not sufficient,

3. F r audit le n t Co x vey a nce PURchase It C)nsi i >eration.

Possession is prima facie evidence of ownership; but when the fact of the grantor remaining in possession is satisfactorily explained, as, for example, that he is in as a renter, and not as the owner, holding in good faith under his grantee, and not under any secret trust for his own benefit, such remaining in possession does not invalidate the conveyance to the purchaser for value without notice.

4. Fraudulent Conveyance.

A case in whtch it is held that the grantee of a fraudulent grantor has satisfactorily met and repelled the presumption that he had knowledge or notice of the grantor's fraudulent intent.

Linn& Hamilton for appellant, cited 22 W. Va 586; 28 W. Va. 952.

J. Schilling for appellees, cited 12 S. E. Rep. 509; 22 W. Va 357 p't 9 of Syll; 17 W. Va. 769; 23 W. Va. 639.

Holt, Judge:

This is a suit in equity brought in the Circuit Court of Calhoun county on the-day of--, by plaintiff below, Mary R, Blackshire, against Silas Petitt and others, impeaching as fraudulent against her, as a creditor of Joseph S. Petitt, a deed executed by him and wife on September 6, 1886, conveying to his father, Silas'Petitt, the tract of land of fifty acres in controversy.

The bill charges that on the 9th day of May, 1883, she, the plaintiff, purchased of Joseph S. Petitt and Mattie E. Petitt, his wife, a tract of land of one hundred and fourteen acres on the Little Kanawha river in Calhoun county, at the price of five hundred and fifty dollars, paid one hundred dollars on the day of purchase, and that for the remainder, four hundred and fifty dollars, her husband, the defendant John R. Blackshire, executed to Mattie E. Petitt his eight bonds dated May 9, 1883 one for one hundred dollars, due August 1, 1883; the seven others for fifty dollars each, due, respectively, in two, three, four, five, six, and seven years thereafter; and by deed of same date Petitt and wife conveyed the land to plaintiff by deed of general warranty. The first bond was for one hundred dollars, due August 1, 1883. This was paid, also two of the fifty dollar bonds. These bonds were paid and lifted; other payments are claimed; also damages for improvements made amounting in all to three hundred and eighty three dollars.

Under this deed plaintiff took possession, and held it until February 15, 1887, when the land was sold under decree of the court in suit of William F. Wiant against Simon Williams and others, and bought by Wiant, who was put in possession by the court under his purchase. The record of the suit of W. F. Wiant against Simon Williams and others is made a part of plaintiffs bill, but it is not brought here as a part of this record.

It seems that the tract of one hundred and fourteen acres had formerly belonged to Simon Williams, the father of Mattie E. Petitt; that he had given a deed of trust on it to secure the payment of a debt to Wiant, and had afterwards conveyed it, or a part of it, to his daughter. The amount of the trust-debt and other particulars do not appear in this present record, and do not seem to be regarded as material to this controversy.

The plaintiff thus lost her land, the covenant of general warranty was broken, and she was entitled to damages, and claimed the sum of three hundred and eighty three dollars, which includes, besides the purchase-money paid, the sum of seventy two dollars for permanent improvements. Plaintiff then alleges that neither defendant Joseph S. Pettit nor Mattie E. Pettit, his wife, lias any property, real or personal, known to the plaintiff, out of which the payment of her demand can be enforced. She charges that the deed of September 6, 1886, from Joseph S. Pettit and Mattie, his wife, to defendant Silas Pettit, conveying the tract of fifty acres by deed of general warranty for the consideration of live hundred dollars recited as in hand paid, was made by the grantors upon a consideration not deemed valuable in law, and with intent to delay, hinder, and defraud the creditors of Joseph S. Pettit, and that the deed was accepted by Silas Pettit, the grantee, with full knowledge of such intent; that the recited consideration was not real, but pretended, and that Silas Pettit was not a bona fide purchaser, but a secret trustee, who was to hold for the use and benefit of the grantor; that it was made soon after the institution of the suit of Wiant against Williams, to which Mattie E. Pettit was a party; that; since the conveyance, Joseph S. Pettit and wile had continued to occupy and use as their own the fifty acres without the payment of any rent; and that Joseph S. Pettit had offered to sell the land, which offer was known to Silas, who said any sale made by Joseph S. would be approved by him.

Under section 38, chapter 125, Code, plaintiff verified her bill by affidavit, thereby requiring the defendants in like manner to verify their answers; but this, under our present rules of equity pleading, only puts the plaintiff on sat- isfactory proof of the truth of the material allegations denied, and any evidence which satisfies the court or jury of the truth thereof shall he sufficient to establish the same. Section 59, chapter 125, Code, p. 810. This rule is the same whether denied under oath or not.

Silas Pettit answered under oath as required, alleging that he was a purchaser of the fifty acres conveyed to him for a valuable consideration, viz., the five hundred dollars named in the deed, and without any knowledge or notice of the fraudulent intent of his grantor, J. S. Pettit, if any such intent existed on the part of Joseph S. Pettit; also answering and explicitly denying all the material allegations that he was not such bona fide purchaser for value; and that his son remained on the land since the sale and conveyance, but under an arrangement made for the use and...