Hawkins v. Blake et als.
| Decision Date | 18 April 1911 |
| Citation | 69 W.Va. 190 |
| Parties | Hawkins v. Blake et als. |
| Court | West Virginia Supreme Court |
The limitation in section 14 of chapter 104 of the Code of 1906, upon suits to avoid voluntary conveyances, is applicable to such a conveyance made with fraudulent design on the part of the grantor, if such design is not known to, nor participated in, by the grantee, (p, 192).
Said statute runs from the date of the conveyance, unless the plaintiff is in a position to claim the benefit of some exception from its operation or suspension thereof, (p. 192).
If a debtor procure a conveyance to be made to himself and his infant children jointly, the latter being volunteers and free from the imputation or charge of fraud by reason of the tenderness of their age, and then execute to the creditor a deed of trust on the land, such deed of trust is not the equivalent of a distraint or levy on the subject of the conveyance or any part thereof and does not affect the interests of the children, (p. 193).
Appeal from Circuit Court, Raleigh County.
Bill by E. B. Hawkins against Mary Blake and others. Decree for plaintiff, and defendants appeal.
Modified and Affirmed.
File & File, for appellants.
Dillon & Nuckolls, for appellee.
The decree from which this appeal was taken grows out of transactions following the conveyance from Blake to Hawkins, involved in the chancery cause of Blake v. O'Neal, finally decided by this Court, and reported in 68 W. Va. 483. By that decision, the grantee of Hawkins lost title to the land conveyed to him by Blake. Thereupon he instituted this suit against Blake and his infant children by a second wife to set aside a conveyance made to them and Blake by Wm. E. Godbey and wife at the instance of Blake and, in consideration of purchase money paid by him, part of the money he received from Hawkins, as voluntary and made with intent to hinder, delay and defraud Blake's creditors and especially the plaintiff as one of them. From the decree, granting the prayer of the bill, the children and their mother have appealed.
Blake and wife conveyed a tract of land in Fayette county to Hawkins by deed dated February 12, 1902, for and in consideration of $1,700.00. On the 5th day of May, 1902, the conveyance involved here, covering surface land in Raleigh county, was made, in consideration, it is alleged of $200.00 of the money received from Hawkins for the Fayette county land. C. T. Blake and others commenced their suit against Sue O'Neal and others, claiming the land conveyed to Hawkins, and in which they made that claim good, on the 23rd day of November, 1903. That litigation ended in 1908. This suit was brought in May, 1909, more than seven years after the date of the conveyance it seeks to set aside. At the date of this conveyance, these children of Blake, to whom he caused three-fourths of the Ealeigh land to be conveyed, were of tender age, being 11, 9 and 7 years old, respectively. As more than five years had intervened between the date of the deed and the institution of the suit attacking it, they rely upon the statute of limitations, section 14 of chapter 104 of the Code, in so far as lack of consideration is relied upon, and deny the allegations of fraud.
That statute says "No gift, conveyance, assignment, transfer or charge, which is not on consideration deemed valuable in law, shall be avoided, either in whole or in part, for that cause only, unless within five years after it is made, suit be brought for that purpose, or the subject thereof, or some part of it, be distrained or levied upon by or at the suit of a creditor, as to whom such gift, conveyance, assignment, transfer or charge is declared to be void by the second section of the seventy-fourth chapter of this Code." That it precludes relief on the ground of want of consideration, if applicable under the peculiar circumstances shown here, is not denied, but its applicability is. This position is founded, in part, upon the assumption of accrual of the cause of action on the final adjudication against Hawkins in Blake v. O'Neal. As the statute in express terms fixes the date of the conveyance as the date from which it runs, we are unable to give this view our sanction or approval. It says no such conveyance as is mentioned in that section shall be avoided "unless within five years after it is made."
A further objection to the applicability of this statute is founded, upon its terms, saying no conveyance which is not on consideration deemed...
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