Foley v. Ruley

• Decision Date: 23 November 1901
• Citation: 40 S.E. 382,50 W.Va. 158
• Parties: FOLEY v. RULEY et al.
• Court: West Virginia Supreme Court

40 S.E. 382

50 W.Va. 158

FOLEY

v.RULEY et al.

Supreme Court of Appeals of West Virginia.

Nov. 23, 1901.

JUDGMENT—LIEN—FRAUDULENT CONVEYANCE —CREDITORS' BILL—PRIORITIES.

1. A creditor who, after his debtor has made a fraudulent or voluntary conveyance of his real estate, but before any other creditor files a bill in equity to set aside such conveyance, obtains a judgment in a court of law against such debtor, has a lien, by virtue of his judgment, upon the real estate so conveyed, from the date of the judgment, superior and prior to that of the creditor assailing the deed.

2. When all the creditors assailing a fraudulent or voluntary conveyance are judgment creditors, the lien of each dates from the time he obtained his judgment, and not from the date of the filing of his bill, answer, or petition, attacking the fraudulent or voluntary conveyance, and the priorities among them must be settled according to the dates of their judgments.

3. A creditor at large is not entitled to priority over one who has obtained a judgment against the debtor subsequent to the date of the fraudulent conveyance, but before the filing of the bill by such creditor at large to set it aside, although he is entitled to priority over one who obtains his judgment after the filing of such bill.

{Syllabus by the Court.)

Appeal from circuit court, Doddridge county; Romeo H. Freer, Judge.

Bill by B. W. Foley against F. J. Ruley and others. Decree for defendants, and plaintiff appeals. Reversed.

J. V. Blair, for appellant.

J. W. Vandervort W. S. Stuart, and Ramsay & Ireland, for appellees.

POPFENBARGER, J. The appellant, B. W. Foley, having obtained two judgments against F. J. Ruley and D. C. Ruley, partners, doing business as F. J. Ruley & Bro., brought a chancery suit in the circuit court of Doddridge county to subject their real estate to the payment and satisfaction of said judgments, one of which was afterwards found by the commissioner to amount to $318.15 as of the 6th day of September, 1894, and the other to amount to $711.32 as of the same date. F. J. Ruley & Bro. were the owners of a tract of land containing 125 acres, and another containing 26 acres. F. J. Ruley and D. C. Ruley were the joint owners of other tracts of land containing, respectively, 201¹/₂ acres, 200 acres, 103¹/₄ acres, 356¹/₂ acres, 184¹/₂ acres, 109 acres, and 129 acres. F. J. Ruley owned tracts containing, respectively, 15 acres, 108¹/₂ acres, and 197¹/₂ acres. The Ruleys, as partners and as individuals, were largely indebted to numerous persons, some of whom were lienholders by deeds of trust and others by judgment while still others were simply contract creditors, who afterwards acquired judgments, and came in by petition. After this suit was instituted, W. S. Stuart brought another suit against the same parties and some additional persons, alleging in his bill the recovery of a judgment against F. J. and D. C. Ruley, A. C. Holmes, and J. W. Hammond, for the sum of $1,012, to be discharged by the payment of $556.47 and $15.80 cost, but subject to a credit of $45. In addition to the necessary allegations respecting the land hereinbefore mentioned, he charges in his bill that a tract of 227 acres of other land had been conveyed to Anne E. Ruley, wife of D. C. Ruley, by Thomas R. Douglas and C. H. Douglas, for about the sum of $2,270, of which about $800 was paid by the said Anne E. Ruley and the balance by F. J. Ruley and D. C. Ruley, and that, except as to the said sum of $800, the conveyance to said Anne E. Ruley was fraudulent and voluntary on the part of F. J. and D. C. Ruley, and was made to hinder, delay, and defraud the creditors of said F. J. and D. C. Ruley. This last bill was filed on the first Monday in February, 1894. A. C. Holmes and J. W. Hammond had become liable for the Stuart judgment and several others by having become sureties in forthcoming bonds executed by F. J. and D. C Ruley, In which default had been made, and thereupon judgments were taken by motion upon notice as provided by law. They were made parties to the first bill, and Holmes filed his answer thereto at March rules, 1894. In that answer he made the same allegation of fraud as to the 227-acre tract of land, and prayed that the deed might be set aside as fraudulent, and the land subjected to sale to satisfy the debts of F. J. and D. C. Ruley. The two causes were consolidated, and referred to Commissioner M. F. Snyder, who completed and filed his report on the 16th day of July, 1894. On the 6th day of September, 1894, F. J. and D. C. Ruley filed their joint answer under oath to the bills in the consolidated causes, in which they admit that Anne E. Ruley had paid only $800 of the purchase money of said 227-acre tract of land, and that the entire purchase money was about $3,400, and aver that she would be entitled to about one-third of the land, and they to the balance of it On the same day the court after overruling the exceptions to the report of the commissioner, confirmed it, adjudicated the amounts and priorities of the several liens upon the several tracts of land except the 227-acre tract of land, and decreed the sale of all the land of all the lien debtors, except said 227 acres. As to that tract the following provision was made in the decree: "Any decree concerning the tract of 227 acres conveyed to the defendant Anne E. Ruley as set forth in the bill of complaint in the second-named cause is postponed by the court until after the sale of the said lands of the said Ruleys above decreed to be sold." From this decree the Ruleys obtained an appeal to this court, and the cause was decided here April 28, 1897, and is reported in 43 W. Va. 513, 27 S. E. 268. The decree was affirmed. At December rules, 1897, G. W. Farr filed his petition in the causes, alleging a judgment in his favor against F. J. Ruley for the sum of $26.30, and attacking the conveyance of the 227 acres of land as fraudulent. At the same time W. S. Stuart, administrator of the estate of G. J. Stuart filed his petition, setting up a decree in his favor for $430.18 against the Ruleys, Holmes, and Hammond, and likewise attacking the conveyance of the 227-acre tract. At the same time J. B. Markey filed his petition setting up a decree in his favor for $284.67 against the Ruleys, Holmes, and Hammond, and attacking said conveyance as fraudulent At the same time the Merchants' National Bank filed its petition, alleging a decree in its favor against the same parties for $620.57, and attacking said conveyance. The amounts set up in these petitions had been adjudicated to the petitioners in the decree of the 6th day of September, 1894, and the lands of the defendants, except the 227-acre tract and the lands of A. C. Holmes had been sold under that decree, but the proceeds had been insufficient to pay these amounts, as well as the sums decreed to Foley, who had filed the first bill. Farr's claim was made the eleventh lien on the lands of F. J. Ruley. The claims of Stuart administrator, and Markey had been made the tenth lien on the 356¹/₂-aere tract, and the ninth on all the other lands of the Ruleys except the 109 acres, upon which they were the seventh. The claim of the Merchants' National Bank of West Virginia had been made seventh lien on the 356¹/₂ acres and sixth on the other lands except the 109 acres. The $318.15 claim of Foley was one of the eight liens on the 356¹/₂ acre tract, seventh on all the other lands except the 109 acres upon which it was one of the sixth. The $711.32 claim of Foley was made the ninth lien on the 356¹/₂-acre tract, eighth on all the other lands except the 109-acre tract, upon which it was the seventh. On the 1st day of December, 1897, the court entered another decree, in which it set aside, annulled, and vacated the deed by which Douglas and wife conveyed to Anne E. Ruley the 227-acre tract of land as to 13/17 of said tract of land, and decreed that Anne E. Ruley have and hold the other 4/17 of it It was further decreed that upon said 13/17 of the land W. S. Stuart had a lien for $143.25, subject to a credit of $——. Commissioners were appointed to go upon and partition the land. On the 22d day of March, 1898, the report of the commissioners gave to Anne E. Ruley 53¹/₂ acres of the 227-acre tract, and was confirmed. On the same day Anne E. Ruley appeared, and docketed her motion and notice to set aside the decree of December 1, 1897, setting aside and vacating the deed as to the 13/17 of the 227-acre tract of land, and she was given leave to file her separate answer, which was done. The errors for which it was asked that the decree be set aside were that prior to the March term, 1898, when the report of the commissioners was confirmed, D. C. Ruley, the husband of Anne E. Ruley, had departed this life, leaving many children and heirs at law surviving him, and the suit had not been revived; that by the decree of September 6, 1894, the whole 227 acres of land was in effect, if not in terms, ascertained to be the property of said Anne E. Ruley, and not subject to any lien of the creditors of F. J. and D. C Ruley; and that the deed for said tract of land retains on its face a lien for purchase money, and the grantor is not made a party to the bill, and there is no averment in the bills that the lien has been discharged. In her answer she denies that there was any fraudulent conduct on her part in reference to said land, and insists that she had paid $1,000 on account of that land and is entitled to more than 4/17 of it; and denies the allegation in the bill that the consideration of $1,117.17, mentioned in the deed as the consideration for the land, was fraudulent or false. The causes were then revived against the widow, administratrix, and heirs at law of D. C. Ruley. At June rules, 1898, W. S. Stuart filed an amended and supplemental bill and bill of revivor, reciting the former proceedings had in the two causes, and again alleging the fraudulent conveyance as to 13/17 of the 227-acre tract...