Herring v. Wickham

• Citation: 70 Va. 628
• Court: Supreme Court of Virginia
• Decision Date: 10 January 1878
• Parties: HERRING & als. v. WICKHAM & wife & als.

70 Va. 628

HERRING & als. v. WICKHAM & wife & als.

Supreme Court of Appeals of Virginia.

January 10, 1878

Absent, Moncure, P.

1. If the grantee in a deed be a bona fide purchaser for a valuable consideration, his or her title is unassailable whatever may have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud, to invalidate the deed.

2. Fraud cannot be presumed; it must be proved by clear and satisfactory evidence.

3. Marriage is a valuable consideration, sufficient to support a conveyance of property, even against creditors; and in such a case the wife is deemed a purchaser of the property settled on her, in consideration of the marriage, and is entitled to hold it against all the world.

4. However much a man may be indebted, an ante-nuptial settlement, made by him in consideration of marriage, is good against his creditors, unless it appears that the intended wife was cognizant of the fraud. And even though it conveys his whole estate, it is not, simply on that account, void and when a settlement is made in contemplation of marriage the law presumes it was an inducement to it, and the courts cannot assume the contrary to be the fact.

5. The fact of the cohabitation of the parties and the birth of children before the marriage will not avoid the conveyance.

6. Coutts v. Greenhow, 2 Munf. 363, examined and followed.

John H. Wickham, a man of high social standing and education, had been notoriously living in an adulterous intercourse with Maria F. Kersey, an humble, uneducated and obscure woman, for twenty-five or thirty years, who had several children by him, the youngest of whom was about seventeen years old in 1870. He was about sixty-seven years old, and she was about fifty-five. The children begotten had not been educated, but had been reared as inferiors. Down to about 1864, he was unembarrassed and wealthy, considered a money-lender. About 1864, or 1865, he began to be embarrassed, and in 1867, or 1868, was hopelessly insolvent. His creditors were pressing him; many judgments had been recovered, and many suits for large amounts were pending against him; and then he made a deed of trust conveying all his property, except such as was encumbered by deed of trust beyond its value, to John Page and John Wickham, for the separate use of the said Maria F. Kersey for her life, with power of appointment, and after her death, failing to appoint, to the children begotten by her in equal proportions. The property consisted of land in the state of Missouri, and a number of bonds amounting nominally to $60,000, though they probably would not realize more than $20,000. His property not embraced in the deed consisted of two valuable tracts of land in Hanover county. The consideration of the deed was the contemplated marriage between the said John H. Wickham and Maria F. Kersey; and the marriage was consummated as contemplated by the deed; and the deed was duly admitted to record.

George I. Herring and several others, suing for themselves and all other creditors of said John H. Wickham, holding judgments to the amount of about $28,000, filed their bill against the said Wickham and wife, and children, and the trustees, setting forth the foregoing facts, and attacking the deed as voluntary, and as also made with intent to hinder, delay and defraud the creditors of said John H. Wickham, and so void as to them, and asking that said deed be set aside, and the property conveyed therein subjected to the payment of their debts. The defendants answered the bill; John H. and Maria denying the fraud; and notice of any participation in the fraud was not proved against Maria, the wife. The circuit court of Hanover dismissed the bill, and an appeal was taken to this court.

C. G. Griswold, W. W. Crump and John Dunlop, for the appellants.

John A. Meredith, J. B. Young, H. T. Wickham and Thomas N. Page, for the appellees.

OPINION

STAPLES, J.

The subject of controversy in this case is an ante-nuptial settlement made by John H. Wickham upon Maria F. Kersey and her children on the 23d of February, 1868. At that time Mr. Wickham was indebted to a very large amount, far beyond his means of payment, and his object in making the settlement, it is claimed, was to defraud his creditors. If Mr. Wickham was alone concerned, there would be little difficulty in declaring the settlement void as to his creditors; but he is not the only one; the parties chiefly interested are the wife and children, for whose benefit the settlement was professedly made. The first section of chapter 114, Code of 1873, which is but a continuation of an old statute, after declaring that conveyances made with intent to hinder, delay, or defraud creditors, shall be void, " further declares that this section shall not affect the title of a purchaser for valuable consideration, unless it appears that he has notice of the fraudulent intent of his immediate grantor, or of the fraud rendering void the title of such grantor." Conveyances for a valuable consideration without notice of the fraud by the person receiving the conveyance are valid at common law, and as is here seen, are expressly excepted out of the operation of the statute. So that if the grantee be a bona fide purchaser for a valuable consideration, his or her title is unassailable, whatever may have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud.

If it be conceded, therefore, that Mr. Wickham's intention in making the settlement was to avoid payment of his debts, the question still arises, Did Maria F. Kersey (now Mrs. Wickham) have notice of that intention? Upon a very careful examination of this record, I think that question must be answered in the negative, or perhaps, to speak more accurately, the evidence is insufficient to establish the notice. It must be remembered that in cases like the present, the courts cannot act upon mere suspicion or presumption. Fraud must be proved--proved by clear and satisfactory testimony. This is the well established rule, universally recognized by the courts, and scarcely needs a citation of authority to support it.

There is no evidence, literally none, to show that Mrs. Wickham, at the time of the settlement, was apprised that Mr. Wickham was in embarrassed circumstances, or even that he was indebted to any one. A witness was introduced who stated that he advised Mr. Wickham to go into bankruptcy, and the latter replied he could come through without it. It is not proved that Mrs. Wickham heard this conversation, or if she did that she understood its purport. And this is the only evidence to establish the notice, unless we are to presume from the intimacy of the parties that Mr. Wickham informed her of his indebtedness, or that his purpose in making the settlement and in entering into the marriage was to secure his property from the claims of creditors. There is, perhaps, no subject upon which men are more reticent even with their families and intimate friends, than that which relates to their business transactions, and especially their pecuniary liabilities. Under all these circumstances it is hardly to be presumed that Mr. Wickham was more communicative in the present case. At all events there is no proof of the fact.

Mr. Wickham's closest neighbors considered him a wealthy man, the wealthiest in the community. Some of them thought him a money-lender. He was the owner of two valuable farms in Hanover, one containing 700 or 800 acres, and the other 1,300 acres, upon which he resided. It is very true they were subject to encumbrances to a large amount, but there is not the lest reason to suppose that Mrs. Wickham knew it. The deed of settlement did not embrace all of Mr. Wickham's estate, but certain specific property, consisting of bonds upon various persons and an interest in land in Missouri. If Mrs. Wickham believed, as the neighbors believed, that her intended husband was a man of large fortune--if she knew he owned the farms, without knowing of the encumbrances-- she might well regard the settlement as just and reasonable, and without injury to any one. It is said by an eminent American author, that, although one American case seems to intimate that a mere knowledge of the insolvency of the intended husband by the intended wife would make a settlement by him on her valid as against her creditors, this appears to be contrary to the English doctrine, and perhaps it is contrary to the true doctrine everywhere. Perhaps a woman may lawfully give her hand in marriage for money which she knows the party cannot pay without withholding from them to whom he had, for a valuable consideration, previously promised it. 1 Bishop on the Laws of Married Women.

Whether this be or not the true rule, it is certainly well established that the fact of the husband's being indebted at the time, and that the woman knew him to be so, will not invalidate the transaction in favor of creditors. 2 Lomax's Digest, 434. If, therefore, it appeared in this case that Mrs. Wickham was aware at the time of her intended husband's indebtedness, that would not of itself be sufficient to invalidate the settlement, unless she was aware of it to an extent to justify the belief of a design on his part to avoid the payment of his debts.

Assuming, then, that she acted bona fide, is the settlement valid against creditors? This inquiry involves several important propositions now to be considered.

In the first place, that marriage is a valuable consideration sufficient to support a conveyance of property even against creditors, is firmly established by a long train of decisions, English and American. The wife in such case is deemed...