Greer v. Mitchell
| Decision Date | 28 November 1896 |
| Citation | 26 S.E. 302,42 W.Va. 494 |
| Parties | GREER et al. v. MITCHELL et al. |
| Court | West Virginia Supreme Court |
Submitted June 17, 1896
Syllabus by the Court.
1. Where the owner of a tract of land conveys the same to his brother by a deed absolute on its face, and allows the said deed to remain for years on the record of the county in which the land lies, thus giving notice to the world of the title thereto in said brother, and third parties extend credit to that brother, and allow him to become indebted to them, and said third parties obtain judgments against said brother for the debts thus created, and docket the same in the county where the land is situated, such creditors thereby acquire a valid lien upon said land, and the party who conveyed said land to his brother, and allowed the deed to so remain recorded, is estopped from claiming title to said land, as against said creditors. Per Holt, P., and English, J.
2. A party who, by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designed or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed afterwards to come in and assert his right, to the detriment of the person so misled. That would be a fraud.
3. F who was the owner of a tract of land in Preston county conveyed the same to his brother I. K., for the avowed purpose of hindering and delaying one of his creditors, and the deed was properly recorded. More than 21 years thereafter, I. K., then residing and doing business in Wirt county, and becoming involved in debt, conveys two tracts of land he owns in said last-named county to his brother F., for the purpose of hindering, delaying, and defrauding his creditors; and about the same time, after two judgments had been docketed against him in Preston county, he reconveys said land situated in Preston county to his brother F. It must be presumed said last conveyance was made with the same object.
Appeal from circuit court, Writ county.
Bill by J. R. Greer and others against A. J. Mitchell and others. Decree for plaintiffs, and defendant Francis A. Fortney appeals. Affirmed.
N. J. FORTney and R. W. Monroe, for appellant.
V. B Archer, for appellees.
This was a creditors' bill, filed in the circuit court of Wirt county, by J. R. Greer, A. Laing, and W. Cruickshank partners, trading as Greer & Laing, against A. J. Mitchell & Isaiah K. Fortney, late partners as A. J. Mitchell & Co., and others, in which they allege, among others things that they are merchants in the city of Wheeling, W. Va., and that prior to 1893 they sold goods, wares, and merchandise to the firm of A. J. Mitchell & Co., doing business at Burning Springs Writ county, W. Va., and that on the 20th day of June, 1893, they obtained a judgment against the said A. J. Mitchell & Co. in the circuit court of Writ county, W.Va. for the sum of $511.69, with interest and costs, which costs amount to the sum of $14.85, a copy of which judgment is exhibited; that on the 8th day of July, 1893, an execution was issued on said judgment, and placed in the hands of the sheriff of said county, and by him levied upon certain personal property belonging to said A. J. Mitchell & Co., and also upon personal property belonging to A. J. Mitchell and Isaiah K. Fortney, individually; that a part of said property was sold, and the sum of $5.35 was realized from the sale thereof, for which amount the said A. J. Mitchell & Co. are entitled to credit upon the judgment and costs as above set out; that said execution had been returned, and shows that no other personal property belonging to said A. J. Mitchell & Co., or either of the members of said firm, was founded by him, out of which the residue of said judgment, interest, and costs could be made; and that no part of said judgment other than said sum of $5.35 had been paid to them by said A. J. Mitchell & Co., or by any person for their benefit; and that the same is still due and owing to plaintiffs. The plaintiffs further say that said A. J. Mitchell and Isaiah K. Fortney owned a tract of land lying on the waters of Chestnut run, in Burning Springs district, Wirt county, W. Va., containing 82.46 acres, conveyed to them by Thomas Floyd and Mary Floyd, his wife, by deed of September 30, 1887, of record in said county, a copy of which deed is exhibited; and they charge that their judgment is a lien upon the aforesaid real estate, as well as upon all other real estate owned by said A. J. Mitchell and Isaiah K. Fortney, or either of them, in the state of West Virginia, and that they are entitled to enforce the lien of their judgment against such real estate, and have the same sold to satisfy their said judgment; that on the 20th day of May, just one month prior to the obtaining of their said judgment, there was recorded in the office of the clerk of the county court of Wirt county a deed from Isaiah K. Fortney and Anna H. Fortney, his wife, to the brother of said Isaiah K. Fortney, one Francis Fortney, of Preston county, W. Va., which deed conveyed to said Francis Fortney 241.43 acres of land laying in the counties of Calhoun and Wirt, W. Va., known as the Hagans and Burns surveys, for the nominal consideration of $400, which is recited in said deed to have been paid in cash, which deed bears date on the 31st day of August, 1892, and is duly recorded in said county of Wirt, which deed is exhibited; and plaintiffs charge that no consideration passed from said Francis Fortney to the said Isaiah K. Fortney for the said last named tract of land, and that, if said $400 was paid, it was a grossly inadequate consideration for the land so conveyed, and that said deed was made for the purpose of putting said property out of the hands of said Isaiah K. Fortney, in order that he might defeat the just claims of creditors against him, and that as to the creditors of said Isaiah K. Fortney, either in his individual capacity or as member of the said firm of A. J. Mitchell & Co., said deed is fraudulent and void; that in the month of July, 1893, prior to the 31st day of said month, they caused their said judgments to be docketed in the office of the clerk of the county court of Preston county, W. Va., as shown by abstract exhibited; that on the 31st day of July, 1893, there was admitted to record in said clerk's office in Preston county, W. Va., a deed from the said Isaiah K. Fortney and Anna H. Fortney, his wife, to Francis A. Fortney, which deed bears date on the 22d day of July, 1893, and conveys to the said Francis A. Fortney a certain tract of land therein mentioned, containing 121 1/4 acres, more or less, as is shown by a deed between Francis A. Fortney and his wife and Isaiah K. Fortney, dated the 1st day of March, 1872, giving the description of the same; that an examination of said deed of July 22, 1893, from said Isaiah K. Fortney and wife to said Francis A. Fortney, discloses the fact that, shortly after the deed of said Francis A. Fortney and his wife to Isaiah K. Fortney, it was mutually agreed by the parties thereto that the same should be rescinded, and the agreement having been entered into by the said Isaiah K. Fortney that he should convey said premises back to Francis A. Fortney, and the said tract of land, in pursuance of the said agreement, having been allowed to remain charged on the land book of Preston county in the name of said Francis A. Fortney, and he having paid all taxes and held possession of and occupied and made valuable improvements thereon, now, in consideration of the above terms, and the return or repayment of said purchase price, the receipt of which is hereby acknowledged, the parties of the fi rst part thereby granted, sold, and conveyed, with covenants of general warranty, etc., a copy of which deed is exhibited. The plaintiffs further charge that their said judgment, having been recorded prior to the recordation of said deed of July 22, 1893, is a lien upon said land, and that they are entitled to have their said judgment enforced against said land in the same manner as if no deed had been made to said Francis A. Fortney by his brother Isaiah K. Fortney; and they further charge that there never was any such agreement as is mentioned in said deed of July 22, 1893, between said Fortneys; and they charge that said deed is fraudulent and void as to the creditors of said Isaiah K. Fortney, either in his own right or as members of the firm of A. J. Mitchell & Co., and that the sum of $250, therein mentioned to have been paid by the said Francis A. Fortney to the said Isaiah K. Fortney, was never actually and in good faith paid by him. The plaintiffs then proceed to state that the defendants Thompson & Jackson obtained a judgment against the said A. J. Mitchell & Co. in the circuit court of Writ county, W. Va., for $866.65, with interest and costs, amounting to the sum of $16.25, which was docketed on the 29th day of June, 1893, which judgment was rendered on the same day, and is equal in priority with plaintiffs' judgment, and was also docketed in Preston county prior to the recordination of said deed from Isaiah K. Fortney and wife to Francis A. Fortney, and is a lien upon the real estate mentioned in said deed; and they say they are informed that a large portion of this judgment of Thompson & Jackson has been paid or secured to them, but they are not advised how much thereof, and call for proof as to what amount, if any, remains unpaid thereon. They further state that on the 30th day of March, 1893, the defendants H. Childs & Co. obtained a judgment against said A. J. Mitchell & Co. for the sum of $155.90, before O. C. Morris,...
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