Elliot v. Trahern
| Decision Date | 12 December 1891 |
| Citation | 35 W.Va. 634 |
| Parties | Elliot v. Trahern |
| Court | West Virginia Supreme Court |
Where, in a suit in equity against the administrators of an intestate, a sum of money is directed to be paid to the general receiver of the court by such administrators, and a common-law execution is directed to issue for said amount in favor of said receiver against said administrators, and, if the same be not paid, directing such receiver to enforce the same against them and their sureties on their bond as such administrators, this is a sufficient direction by the court to authorize said receiver to institute suit against said administrators and their sureties to collect said amount so decreed the said receiver.
The practice of filing a special replication to an answer is obsolete, except in such cases as are provided for in sections 36 and 57 of chapter 125 of the Code, where new matter is alleged in an answer constituting a claim for affirmative relief. In cases where no such new matter is alleged in the answer, the practice is to file an amended bill.
A case in which a judgment confessed by a son to his father upon notes previously executed to him is held not to be fraudulent as to debts existing against the estate of an intestate, although said son was at the time said judgment was confessed one of the sureties of the administrators of said estate on their official bond, and several months after said judgment was confessed it was ascertained that said administrators had committed a considerable devastavit.
Dayton & Dayton for appellant, cited 4 W. Va. 56; 13 W. Va. 718, 730; 14 W. Va. 211; 11 How. Pr. 454; 16 How. Pr. 142; 3 Edw'ds dry 390; 12 Ohio 120; 4 W. L. J. 1; 18 Ohio 240; 1 Black Judgm'ts § 349; 13 W. Va. 29; 24 W. Va. 405; 29 W. Va. 441; 32 W. Va. 447; 46 Ill. 279; Clarke Ch'y 584; 93 111. 400; 12 P. I. 61; 1 Paige Ch'y 637; 31 X. Y. 638; 2 Paige Ch'y 567; 2 Sandf. Ch'y 594; 64 Mo. 292; 4 Edw'ds Ch'y 538; 13 Wend. 244; 26 Barb. 580; 20 Barb. 381; 2 Wall. 249; 4 Johns. Ch'y 687; 27 Gratt. 479; 22 W. Elliot v. Trahern.
Ya. 434; 19 W. Ya. 366; 30 W. Ya. 443; 31 W. Ya, 156; 33 W. Ya. 116.
J. H. Woods for appellee, cited 23 W. Ya. 639; 29 W. Ya. 441; 32 AY. Ya. 203; 3 Munf. 521; 10 W. Ya, 59; 33 W. Ya. 116; 32 W. Ya. 203; Code, c. 74, s. 1; 22 W. Ya, 357; Id. 434; Code, c. 134, s. 5; 21 W. Ya. 291; Id. 316; 27 Gratt. 479; Wait Fraud. Con. (1889) § 392; 3 Graft. 34, 58; Code, c. 136, s. 27.
On the 11th day of December, 1875, James W. Trahern and John F. Trahern qualified as the administrators of James Trahern deceased, and gave bond in the penalty of twenty thousand dollars, and Francis A. Phelps became one of the sureties therein before the clerk of the county court of Barbour county; and, said administrators having committed a devastavit of said estate, Truman T. Elliot, general receiver of the Circuit Court of Barbour county, filed his bill in the Circuit Court of said county against James W. Trahern, John F. Trahern, Henry Deahl, Francis A. Phelps, Walter W. Phelps, Joseph N. B. Crim, Thomas A. Bradford, and Thomas R. P. Brown, in which, after stating the appointment and qualification of said James W. and John F. Trahern as administrators of James Trahern, deceased, as also the fact of said bond, in the penalty of twenty thousand dollars, having been executed by said administrators, with Henry Deahl, Francis A. Phelps, and two others, John England and William Nestor, who were then dead, and their estates insolvent, as their sureties, the plaintiff alleges that a very large estate went into the hands of said administrators, and that on the 8th day of November, 1880, in the chancery cause of Miles White's executor, etc., against said administrators, etc., in said county, a decree was entered which ascertained that there was then due and distributable of the assets of James Trahern in the hands of said administrators the sum of two thousand five hundred and thirteen dollars and thirty two cents, with interest from the 19th day of March, 1879, of which seven hundred and seventy three dollars and fifty two cents was di- rected to be paid to the defendants Brown, Bradford, and others, and one thousand seven hundred and thirty nine dollars and seventy cents to A. B. Modisett, the general receiver of the court with interest on both as last aforesaid, and leave was given him to sue out execution therefor, but no execution was sued out therein, and the portion of said decree referred to was exhibited; that said Modisett, general receiver, having died, the plaintiff was appointed general receiver in his stead, and on the 19th of July, 1881, a decree was entered in said cause suggesting the death of said Modisett, and directing the plaintift as general receiver, to sue out execution for said one thousand seven hundred and thirty nine dollars and seventy cents, less four dollars and seventy cents; that on the 7th of April, 1879, the order appointing said administrators was revoked, and said estate was committed to the sheriff of said county as administrator de bonis non, but no assets ever came into the hands of said Sheriff from the estate of said Trahern; that said decree of one thousand seven hundred and thirty nine dollars and seventy cents, less four dollars and seventy cents, remaining wholly unpaid to him, on the 4th of August, 1881, he instituted in said Circuit Court against the said Traherns, as administrators, an action of debt upon their said bond, and on the 17th day of July, 1885, recovered against them and Henry Deahl and Francis A. Phelps, surviving obligors of themselves and said England and Nestor, deceased, a judgment for two thousand three hundred and twelve dollars and twenty two cents, with interest thereon from the 15th day of July, 1885, and thirty four dollars and ninety one cents costs, a copy of which judgment is exhibited; that execution issued thereon, and was returned, "No property found;" that the defendants Brown and Bradford assigned the benefit of said decree of November 8, 1880, in their favor to the defendant Grim, who also on the 14th day of March, 1883, recorded several judgments in the name of the state of West Virginia, for his use against the same defendants, one for ninety six dollars, with interest thereon from the 14th day of March, 1883, and fourteen dollars and eighty cents costs, and one for six hundred and fifty nine dollars, with interest thereon from March 14, 1883, and twenty two dollars and seventy cents costs, winch plaintiff is informed remain unsatisfied.
Plaintiff further says that on the 11th day of December, 1875, when the defendant Erancis A. Phelps became the surety of the saidTraherns upon said official bond, he was the owner of the undivided moiety of three tracts of land, one containing thirty five acres, and another sixty five acres, and another eighteen acres, and he was also the owner of a tract containing one hundred and thirty five acres, and that before the execution of said bond George A. Phelps had conveyed his undivided moiety in said thirty five acre tract to the defendant Francis A. Phelps, who then owned the other moiety as aforesaid; that said Francis A. Phelps is still the owner of said interests, except his undivided moiety in said sixty live acres, which was conveyed by him to said George A. Phelps, by deed dated December 29, 1882, and that the said unsold interests are chargeable with the lien of the plaintiffs judgment aforesaid, and liable to be sold to pay the same, as well as of the said Crim, assignee of said Brown and Bradford, if the same still remains unpaid; that on the 3d day of July, 1880, the defendant Francis A. Phelps confessed a judgment in favor of his co-defendant Walter W. Phelps for the sum of one thousand three hundred and thirteen dollars and forty three cents, with interest thereon from the 3d day of July, 1880, and the costs, three dollars and forty cents.
Plaintiff charged that said judgment was fraudulent and was fraudulently confessed, in order to hinder, delay and defraud plaintiff in the collection of said devastavit of the administrators of said James Trahern; that the same was not founded upon any valuable consideration; that the said Walter W. Phelps is the father of the said Francis A. Phelps; that the process upon which said judgment was confessed was dated July 3d, 1880, and was accepted by said Francis A. Phelps on the same day; that judgment was entered up without plea or defence on the same day; that no execution ever issued upon the judgment, and no other effort was ever made by judicial process to collect the same. Plaintiff further charged that the consideration upon which, presumably, the said judgment was based, was three separate single bills of said Francis A. Phelps executed to Walter W. Phelps, dated and payable as follows: "one for two hundred and sixty six dollars and sixty six cents, with interest dated February 15, 1873, due; one for two hundred and seventy five dollars, with interest, elated October 7, 1873, due; and one for four hundred dollars, with interest dated July 21, 1874, due; that the said three single bills bear upon their faces evidences and badges of fraud; that all of them were executed at the same time, written by the same pen, hand, and ink; and that the note dated July 21, 1874, was written before and on the same piece of paper as the note dated February 15, 1873, and then cut apart; and that the said notes and confession of judgment show other signs of fraudulent intent and purpose of the said Francis A. Phelps and Walter W. Phelps; and he prayed that said land owned by said Francis A. Phelps at the rendition of plaintiff's judgment may be sold to satisfy the same.
On the 27th day of October, 1887, the defendants W. W. and F. A. Phelps tiled their joint answer to the plaintiff's bill, admitting the...
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