Faroes v. Ryland

• Decision Date: 29 January 1891
• Citation: 12 S.E. 805,87 Va. 404
• Parties: De Faroes et al. v. Ryland et al.
• Court: Virginia Supreme Court

12 S.E. 805

87 Va. 404

De Faroes et al.

v.Ryland et al.

Supreme Court of Appeals of Virginia.

Jan. 29, 1891.

Competency op Witness—Post-Nuptial Settlement—Consideration—Eights op Creditors.

1. The husband's interest in a suit by his creditors to set aside a deed of trust from him for his wife's benefit, renders the wife incompetent as a witness.

2. In such suit, the recitals of consideration in the deed are not competent evidence against the creditors.

3. A post-nuptial settlement, when the husband is indebted, is void, as against his creditors, unless made for a valuable consideration; and the burden of proving consideration is on the husband and those claiming under him.

Appeal from circuit court, King William county.

J. N. iitubbs, for appellants.

H. R. Pollard, for appellees.

Lacy, J. This is an appeal from two decrees of the circuit court of King William county, rendered, respectively, on the 25th day of October, 1888, and the 4th day of May, 1889. The bill was filed by the appellees against the appellants, John S. De Farges, Josephine DeFarges, his wife, and F.King, trustee, to set aside a trust-deed made by the appellant John S. De Farges, on the 31 st of March, 1887, by which he conveyed all of his property to the said appellee King, to be held in trust for the benefit of his said wife, the appellee Josephine De Farges, free from the claims of all persons claiming under him. Thedefendantsanswered, and depositions were taken, and the case heard in the circuit court on the 25th day of October, 18^8, when the said court, without at that time passing on the validity of the trust-deed above mentioned, so far as it related to the debts of the said John S. De Farges, not then constituting liens on his real estate, or not secured in another trust-deed by the said De Farges, conveying certain property to trustees to pay certain debts, declared said deed of March, 1887, void only as to debts thus secured before the recordation of the said deed; directed the trustee in the trust-deed first made, dated 22d of March, 1886, to close the same; and directed the trustees, Pollard and Bagby, to proceed, under another trust-deed, dated December 27, 1886, to make sale of so much of the property con veyed to them by said last-mentioned deed as was necessary to pay the costs, etc., and the residue unpaid of the debts secured therein. And on the 4th day of May, 1889, the said circuit court of King William county rendered another decree, by which, after excluding the deposition of Mrs. De Farges, it held that the trust-deed of March 31, 1887, was made with intent to hinder, delay, and defraud creditors, and was therefore void as to debts contracted before its execution; decreed the sale of the personal property con veyed in the deed to be first made, and appointed a receiver to execute the decree as to this, except as to property exempt under sections 3650 and 3651 of the Code of Virginia, upon a credit, except as to small sums. From this decree De Farges and wife applied for and obtained an appeal to this court.

The first assignment of error necessary to notice is the complaint that the sale was ordered before the report of the trustee camein, closing the first trust-deed as to the sale of the saw-mill. Regularly this report should have been in, in order to ascertain the balance due after crediting the proceeds of the saw-mill; but, there-port being filed, it appeared that Mrs. De Farges was the purchaser at this sale, and therefore there was no injustice or injury to the appellants, as they appear to have had full knowledge and information upon this subject.

The next assignment is that the court erred in excluding the deposition of Mrs. De Farges in this cause. This question is too well settled to admit of any profitable discussion. As was said by this court in the case of Burton v. Mill, 78 Va. 470, as to the competency of husband and wife in such case: "They occupy the relation of husband and wife, and are both interested in the result of this suit. They are therefore incompetent as witnesses."' William and Mary College v. Powell, 12 Grat. 372; Murphy v. Carter, 23 Grat. 486.

But it is insisted that Mr. De Farges was not interested in this suit, because he had parted with all interest to his wife; but that is the very question, —whether this act is valid, which was done by him, —and the cases all hold that he is interested in such a case. As he obviously is, his wife is also interested. Her interest would not render her incompetent, but his interest does render his wife incompetent as a witness.

It is assigned as error that the circuit court annulled the deed of March, 1887, as fraudulent and void as to existing creditors. It is settled that the relinquishment by the wife of a certain or even a contingent interest in her husband's estate will support a post-nuptial...