Hanna v. Charleston Nat'l Bank
| Decision Date | 01 March 1904 |
| Citation | 55 W.Va. 185 |
| Parties | Hanna v. Charleston National Bank and Others. |
| Court | West Virginia Supreme Court |
1. Right of Appeal Surety entitled to when.
A surety in an execution levied on the property of the principal debtor has such interest in the controversy over the ownership of such property, to which he is a party, as to entitle him to appeal from a judgment discharging such property from the lien of such execution, (p. 187).
2. Deed for Future Support When Fraudulent in Law.
Among others, a deed from a father to a daughter conveying her his property, contains the following stipulations: "The iurther consideration of this deed is that the party of the second part, shall not dispose of said property during the lifetime of the party of the first part, without the written consent of the party of the first part, and that the party of the second part will furnish to the party of the first part a comfortable and proper support and maintenance during his natural life." Such stipulation renders such deed in law prima facie a nullity and void as to existing creditors, and it cannot be sustained unless it is shown that the grantor retained a sufficient amount of property to satisfy his debts, (p. 190).
Error to Circuit Court, Kanawha County.
Action by Kate P. Hanna against the Charleston National Bank and others. Judgment for plaintiff, and Peter Silman brings error.
Reversed.
A. M. Prichard, for plaintiff in error.
A. B. Littlepage and Flournoy, Price & Smith, for defendant in error.
Peter Silman complains of a judgment of the circuit court of Kanawha county rendered in certain proceedings to try the right to certain personal property wherein Kate P. Hanna was plaintiff and The Charleston National Bank, plaintiff in error, Peter Silman, and George Pfeiffer were defendants. The property in controversy was levied on as the property of George Pfeiffer by virtue of an execution for the sum of $165.07 with interest and costs, in favor of the Charleston National Bank, against George Pfeiffer as principal and Peter Silman as surety. By verdict of a jury under the instructions of the court the property was found to be the property of the claimant, and judgment was rendered accordingly. Peter Silman obtained this writ of error. The defendant in error, Mrs. Hanna, claims that he has no such interest in the subject matter in controversy as entitles him to maintain this writ. He is surety for the judgment and entitled to have it made out of the property of his principal for his relief. If the property levied on was the property of his principal he was virtually interested in preventing its release and in having it applied in satisfaction of the execution. By section 138, chapter 50, Code, it is provided that: "When a joint judgment is rendered against a principal debtor and his surety, if such suretyship appears to the satisfaction of the justice by any evidence at the trial or paper filed in the cause, or by admission of the parties, he shall note the fact on his docket, and in such case a memorandum thereof shall be endorsed on the execution, and the personal property of the principal debtor subject to execution, within the jurisdiction of the officer, shall be first sold, unless the surety direct otherwise." This section confers on the surety the right to have his principal's property subjected to the payment of the judgment for his benefit. This right always existed in equity under certain limitations and by this statute it is made a matter of law. Or the surety had the right to pay the judgment and he was then substituted to all the rights and remedies of the judgment creditor. Now, under the statute before payment of the judgment, he has the legal right to have the principal's property subjected to the payment of the execution. This invests him with an appealable interest in this case, for he has the right to have the property levied on, if the property of the principal, applied for his benefit. The surety's right then to maintain this writ depends entirely on the merits of the controversy, and this is as to whether the property claimed by the defendant in error was leviable on as the property of George Pfeiffer, the principal debtor. If so, the surety has the right to have it held and applied for his relief. The record shows affirmatively and clearly that if the property released from the levy was subject thereto as the property of the principal debtor, the surety was aggrieved by the release thereof and such grievance does not depend on the contingency that there may probably be other property of the debtor subject to such levy, or that the creditor might otherwise be able to make its money out of the principal debtor. Such contingencies are too remote to destroy the surety's grievance occasioned by the release of the debtor's property actually in the custody of the law for the satisfaction of the debt. A bird in hand under such circumstances is worth a whole flock in the dense forest of uncertain probabilities.
The first question on the merits which presents itself is whether for any reason the conveyance under which the defendant in error claims the property in controversy is void as to the plaintiff's debt. If so, the motion of the defendant Peter Silman, united in by the Charleston National Bank to set aside the verdict, "and grant them a new trial on the ground that
the same was contrary to the law and the evidence" should have been sustained, and the circuit court erred in not doing so. The conveyance is as follows:
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