Farmers' Bank v. Corder
| Decision Date | 25 February 1889 |
| Parties | FARMERS' BANK v. CORDER et al. |
| Court | West Virginia Supreme Court |
Submitted January 19, 1889.
Syllabus by the Court.
1. A deed of conveyance bearing date the 8th day of June, 1850, to a husband and wife residing in Barbour county, then in Virginia, for a tract of land situated in said county, did not confer upon the husband title to the undivided moiety of said land, but said husband and wife took by entireties.
2. A creditor of the husband files a bill to subject the real-estate of the husband to the payment of his debt. It is error in the court, upon the above state of facts in regard to the acquirement of title by the husband and wife, to hold that the husband is entitled in fee-simple to the undivided one-half interest in said tract of land, and to direct said undivided half to be sold for plaintiff's debts.
3. Although a deed may be fraudulent and void as to creditors it is nevertheless valid and binding between the parties to the fraud which brought it into existence, and it is error in the court to set aside and annul such deed in toto.
4. A deed of conveyance is made directly from the husband to the wife for a tract of land, and as part of the consideration she agrees to pay B. $300, and H. $100, with interest on said amount, which the husband owes to B. and H and to secure which amount the vendor's lien is reserved. Although said deed may be set aside as to general creditors as fraudulent, the liens thus reserved must be respected as liens on the equitable title conveyed as of the date of the recordation of said deed, if said claims are valid in other respects.
Appeal from circuit court, Barbour county.
John Bassel and Dayton & Dayton, for appellants.
Sam. V Woods, for appellee.
In November, 1884, the Farmers' Bank of Phillippi filed its bill in the circuit court of Barbour county against Thomas Corder and Elizabeth Corder, his wife, Anthony F. Daniels Erwin Douglas, John H. Daniels, Benjamin Bartlett, and James E. Heatherly, under section 2, c. 133, Code W. Va., which allows a creditor, before obtaining a judgment or decree for his claim to institute a suit to avoid a gift, conveyance, assignment, or transfer of or charge upon the estate of his debtor which he might institute after obtaining such judgment or decree, under which section it is provided that "he may in such suit have all the relief in respect to said estate which he would be entitled to, after obtaining a judgment or decree for the claim which he may be entitled to recover." In said bill the plaintiff alleges that on the 10th day of May, 1884, the defendants Anthony F. Daniels, Erwin Douglas, Thomas Corder, and John H. Daniels executed to it their promissory note for $1,500, due 120 days after date, and thereby jointly and severally promised to pay plaintiff or order, at its banking house in Phillippi, the sum of $1,500, with interest after maturity at 8 per cent. per annum, the whole of which remains unpaid; that at the time said note was made, and at the time of making the voluntary conveyance thereinafter named, the defendant Thomas Corder was the owner in fee-simple of the undivided one-half of a certain tract of land in said county, containing 168 1/2 acres, which was conveyed to him and his wife, the said Elizabeth Corder, as tenants in common, by Peter Zinn and wife, by deed dated the 8th day of June, 1850; also of a tract of about eight acres, being his share of the upper meadow, devised to him and David Zinn by the last will and testament of Peter Zinn; also about three acres which were devised by the same will, which bears date May 1, 1866, and also a tract of eight acres adjoining said 168 1/2 acre tract, which was conveyed to said Thomas Corder by Nancy Heatherly and others, by deed dated May 1, 1854, and another tract of land containing 11 1/4 acres, adjoining said 168 1/2 acre tract, which was conveyed to him by Henry O. Middleton, by deed dated February 2, 1853. It is also alleged that on the 23d day of August, 1884, said Thomas Corder conveyed to his wife all of said real estate; also one bay horse, one white cow, three hogs, and ten sheep, part of the personal property then owned by him,--with intent to hinder, delay, and defraud the plaintiff in the collection of its said claim, for the pretended and false consideration of a debt of $964 therein recited to be due from him to his said wife for borrowed money, and for the further consideration of $300 to be paid by his wife, with its accrued interest, to the defendant Benjamin Bartlett, and $100 to be paid, with its accrued interest, by her to the said James E. Heatherly, which last two sums are charged upon said land as a lien by the terms of said conveyance; that at the time said conveyance was made said Thomas Corder was not indebted to his said wife, and that she well knew the intent with which said conveyance was made; that between the time of the execution of said note and the execution of said last-named deed the defendants Anthony F. Daniels and John H. Daniels became and still remain utterly insolvent and worthless, of which fact the defendant Thomas Corder had notice at the time he executed the said last-named deed, and that said deed conveyed all the real estate owned by said Thomas Corder; that at the time said suit was brought, to-wit, on the 18th day of October, 1884, the plaintiff sued out an attachment therein, which on the same day was duly levied upon all the lands of the defendant Thomas Corder, and the plaintiff prayed that the said conveyance made by said Thomas Corder to his wife, Elizabeth Corder, might be canceled and annulled as to the plaintiff's claim; that said claim might be charged as a lien upon the land and personal property thereby conveyed; that said attachment lien might be enforced against said land by subjecting the same to sale. At the December rules, 1884, the defendants Thomas Corder, James E. Heatherly, and Benjamin Bartlett demurred to the plaintiff's bill, the last two assigning as cause of demurrer that the bill is insufficient on its face, because it avers its demand to be a lien, and prays its enforcement as against the lands conveyed to Elizabeth Corder; that there is no lien in fact, unless it arise under the attachment, which is a suit by itself, apart from the matter of the bill, and which must stand or fall on the case made on it, nor is the attachment order by its levy a lien or charge, unless sustained at the trial thereof and final judgment thereon; that the deed of Corder creates a lien and charge from the date of its recordation in favor of demurrants for their valid debts set out in said deed, as to which said Elizabeth Corder is made their trustee, and they have a priority and valid lien and charge over the plaintiff on said land; that the plaintiff's bill is defective in making no allegations concerning their interest, neither admitting nor denying them; that if said bill was to be taken for confessed there would be no foundation for any decree against them, and that it would be manifest error for the court to annul said deed, and decree for the plaintiff to the prejudice of demurrants, in the absence of all such averments made in its said bill, and the recitals of the deed in favor of their demands must stand before the court as valid till assailed; that there are in fact no allegations for the demurrants to have or maintain any issue or controversy about, and they insist that the bill is demurrable, and should be dismissed, with costs. An amended bill was filed by plaintiff at November rules, 1885, merely alleging that since they became seised of the lands alleged to have been conveyed to them by Peter Zinn there have been born unto said Corder and wife many children capable of inheriting the estate, who are still living.
At the March term, 1885, said demurrers were overruled by the court and on the 15th day of July, 1885, the defendants Thomas Corder and Elizabeth Corder filed their answers to the plaintiff's bill, in which they admit the execution of the note for $1,500 in the bill mentioned, payable as therein stated, and allege that said note provided for the payment of a usurious and illegal rate of interest after maturity. They deny that said Thomas Corder was the owner with the defendant Elizabeth, as tenants in common, of a tract of 168 1/2 acres of land, as stated in plaintiff's bill, and claim that the deed from Peter Zinn, dated June 8, 1850, vested in each of respondents the entirety, with the right to the survivor to take the whole; and consequently said Thomas did not, on the 10th day of May, 1884, and on the 23d day of August, 1884, have the right and title to one-half of said land. They deny that said deed of August 23, 1884, for said 168 1/2 acres, and the other parcels of land therein described, together with the personal property therein described, was made with intent to delay, hinder, and defraud the creditors of said Thomas Corder, and more particularly to hinder, delay, and defraud the plaintiff in the collection of its said debt, and they call for full proof thereof; they also say that on the 23d day of August, 1884, and for a period long prior thereto, the said Thomas did owe the said Elizabeth the sum of $964, for money of said Elizabeth, which was her separate estate, lent by her to said Thomas, and for which she had held his note since the 9th of February, 1880. They admit that they knew their co-defendant A. F. Daniels was insolvent when said deed of August 23, 1884, was executed, but deny that they knew that John H. Daniels was in the same condition. They admit that an attachment was sued out and levied upon the property as alleged in the bill, but allege that the allegations in the affidavit are not true. The...
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