First Nat. Bank of Grafton v. Danser
| Decision Date | 19 March 1912 |
| Parties | FIRST NAT. BANK OF GRAFTON v. DANSER et al. |
| Court | West Virginia Supreme Court |
Submitted June 15, 1911.
Syllabus by the Court.
An appeal from a decree setting aside conveyances as having been made with intent to hinder, delay, and defraud creditors cannot be dismissed on the motion of the appellee, over the objection of the parties to the deeds, as involving only moot questions, on proof of payment of the debt by the grantee and release of the decree by the creditor, subsequent to the date of the decree.
The defense of set-off is not applicable to a negotiable note transferred for an adequate consideration before maturity even though the transferee purchased the note with notice of the claim of set-off.
A grantee in a deed, charged with having obtained it in fraud of the rights of a creditor, must clearly prove payment of a fair and adequate consideration for the property after the prior indebtedness to the attacking creditor has been shown; else the charge of fraud will be sustained.
A deed made when no unsecured indebtedness is shown to have existed and long before the debt of the assignor of the attacking creditor was contracted, will not be set aside as fraudulent merely because the parties thereto were closely related, and the deed was withheld from record until after such debt was contracted.
Appeal from Circuit Court, Taylor County.
Bill by the First National Bank of Grafton against Elijah T. Danser and others. Decree for plaintiff, and defendants appeal. Affirmed in part, and reversed in part.
W. P. Samples, for appellants.
Warder & Robinson, for appellee.
The decree under review on this appeal set aside three deeds as having been made in fraud of the rights of creditors, of whom the plaintiff was one, holding a negotiable promissory note for the sum of $480 as indorsee of Estella Mallonee, executed by the defendant E. T. Danser, representing the unpaid part of a larger note given for purchase money of certain personal property, payment whereof was secured by a deed of trust on such property. As the deed of trust did not provide for renewal of the original note in whole or in part, it is said the new one for a portion of the amount is not secured by it.
Two of the deeds were executed by E. T. Danser, maker of the note, to William J. Danser, his brother, and the other to Geo. A. Danser, another brother. After the decree, appealed from, William J. Danser borrowed money on some or all of the property so conveyed to him, and satisfied the decree and the debt involved herein. This done, the plaintiff below, appellee here, moved to dismiss the appeal. Though his motion had been overruled prior to the submission of the cause in this court, it was renewed on the submission thereof. By the arrangement made after the decree, William J. Danser was placed in a position to assert a claim against his grantor for breach of the warranty in the deed, of which the decree would be evidence. Hence E. T. Danser, who was not a party to the subsequent transaction, and denies procurement and ratification thereof, or either, is still affected by the decree, and has done no act operative against him as an estoppel. Again, the adjudication of fraud against William J. Danser in favor of the bank, in a suit to which he was a party, may preclude his right of subrogation against E. T. Danser. Clearly, therefore, the payment of the debt and release of the decree do not settle all rights involved in the appeal, and so reduce it to one presenting only moot questions. Kaufman v. Mastin, 66 W.Va. 99, 66 S.E. 92, 25 L. R. A. (N. S.) 855. All three of the Dansers have appealed; and an appeal cannot be dismissed at the instance of some of the parties over the protest or objection of others, whose interests have not been extinguished. Ferguson v. Millender, 32 W.Va. 30, 9 S.E. 38.
The new note was dated December 20, 1908, and made payable 180 days after date. On the 25th day of February, 1909, W. P. Samples assigned to the...
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