Hickman's Ex'rs v. Trout

• Decision Date: 10 June 1887
• Citation: 3 S.E. 131,83 Va. 478
• Parties: Hickman's Ex'rs v. Trout and another.
• Court: Virginia Supreme Court

3 S.E. 131

83 Va. 478

Hickman's Ex'rs

v.Trout and another.

Supreme Court of Appeals of Virginia.

June 10, 1887.

Fraudulent Conveyances—Conveyance to Son—Consideration.

A father who was largely in debt, and harassed by creditors, conveyed to his son, who lived with him, and who was possessed of limited means, apparently inadequate to pay the purchase money, a tract of land, by a deed acknowledged and recorded more than a year after the date of the execution, for the express consideration of $3,000, payable, $500 in cash, $500 on demand, and the balance in annual payments of $500 each, reserving no lien for the deferred payments, and following the conveyance by no change in the occupancy of the property. The evidence showed the express consideration to be both inadequate and not bona fide. Held, that the conveyance was fraudulent and void as to the creditors of the father. Fauntleroy, J., dissenting.

Appeal from circuit court, Shenandoah county.

Walton & Walton, for appellants. Williams & Bro. and Mr. Allen, for appellees.

Kichardson, J. This is an appeal from a decree of the circuit court of Shenandoah county, rendered on the tenth of April, 1885, in a chancery suit wherein John T. Hickman's executors and George A. Hupp are complainants, and Isaac Trout and James S. Trout, defendants. The object of the suit, brought in April, 1873, was to set aside, as fraudulent and void, a deed executed February 5, 1872, and acknowledged March 7, 1873, by the grantor, the said Isaac Trout, and recorded March 28, 1873, and purporting to convey to the said James S. Trout all the grantor's real estate, for the professed consideration of $3,000, whereof $500 is recited to have been paid in hand, $500 evidenced by bond payable on demand, and the residue evidenced by four bonds, each for $500, payable in four, six, eight, and nine years, respectively, with interest from their date; and also to enforce upon the said real estate the liens of two judgments against the said Isaac Trout, obtained and docketed in said county in 1873, after the recordation of said deed; the first being in favor of the said Hickman, for $2,455.34, with interest from May 8, 1871, and $10.45 costs; and the second in favor of said Hupp for $750, with interest from January 1, 1861, and $7.95 costs, subject to certain credits.

The bill alleged that said conveyance was made with intent to hinder, delay, and defraud the complainants and other creditors of the grantor, and that the grantee was privy to such intent; and the bill alleged divers circumstances as evidence of the fraud charged. Each of the defendants answered separately, denying the alleged fraudulent intent, and insisting that the conveyance was made for valuable consideration, and in good faith. By both sides depositions were taken, constituting a voluminous record. A recital of the evidence would be impracticable and useless. However, as the result of a careful examination of the whole mass, we are satisfied that the following pregnant facts are well established, and are decisive of the case.

On its face, the deed purports to be executed by Isaac Trout and wife, though he alone signed it; which may indicate that, in the inception of the transaction, a conveyance was in contemplation, free from the incumbrance of dower. The usual lien for the deferred payments is not reserved, and no other security is taken therefor. The estate conveyed consists of a tract of 63½ acres, a lot of 5 acres, and a house and lot in the town of "Woodstock. The ciear preponderance of evidence is that this real estate in the aggregate was, at the time of its conveyance, worth, free from incumbrance, $5,500. As much as this, Isaac Trout, the grantor, had been offered; and he demanded even more. The grantor was 72 years old, and his wife only a few years younger. The grantor and grantee were father and son; the latter being a widower without children, 36 years old, engaged in running a village newspaper in Woodstock; and, since 1866, boarded himself and one, and some-tiroes more, of his apprentices, at his father's house. He was possessed of limited means, apparently inadequate to pay for the real estate conveyed to him. Isaac Trout was, at the time of this conveyance, and had long been, indebted beyond his means of paying; and was much harassed with duns, and threatened with suits by his creditors, and only kept them off by promising from time to time to sell his property, and pay his debts; and these circumstances were known to his son and grantee. One witness, Dr. Irwin, testified that he had made Isaac Trout, the grantor, a standing offer of $4,000, for the 63½ acres alone, from 1866 till the fall of 1872.

The deed in question, made February 5, 1872, was only acknowledged the seventh of March, 1873, and then by Justice Gray bill, a near relative of the parties, who was told, as he testifies, "in a careless sort of way, " "to keep the matter private." No apparent change in the possession of the property took place after the execution of the deed. Witnesses depose that, after its execution, the grantee attended to this property as still being his father's; and as late as the fall of 1872, spoke of his father's unwillingness to trade any part of the 63½-acre tract for part of the witness' land, but said he desired to sell 100 fine trees off it. Isaac Trout, being old and in feeble health, did not attend to his out-door business, and his son, the said James S. Trout, attended to the farm, and had the fences and the house in town repaired. In March, 1873, the complainants placed their claims in the hands of attorneys, who instituted actions thereon. On the twenty-fifth of March, 1873, the counsel for the Trouts informed those attorneys by letter that Isaac Trout had sold his real estate to his son, and that, if pressed, the matter must be settled by law. On the twenty-eighth of March, 1873, the deed was recorded. "By direction, " a lawyer, named McKay, had written several deeds for the separate pieces of property. But, "under the advice of a lawyer, " James S. Trout deposed that he, (James,) in order to avoid the stamp tax, wrote the deed in question, incorporating the several deeds in one. Neither of these lawyers deposed in the case. James S. Trout himself had studied the law, and had practiced awhile. On the important question of the payment of the alleged consideration of $3,000, the answer of Isaac Trout sets out that, at the time of his sale of his real estate to his son, he owed his said son a considerable sum of money, and he files with his answer a statement thereof, which is as follows:

Amount of taxes paid bv J. S. Trout for I. Trout from 1868 to 1872----$ 126 81

Amount paid for hire of hands,345 00

Amount paid by him to J. P. Nelson,60 00

Amount paid on store account for clothing for Mr. and Mrs.

Isaac Trout, and money drawn from the Herald office, from 1866 to 1871,-425 00

April, 1871. Amount paid Williams & Bro., on judgment of Mary Mclnturff,-222 17

April 29. Amount paid on claim of Clower & H.,-20 83

" " Amount paid for supplies, pork, beef, flour, etc., for 1871-2,----450 00

July 3, 1874. Amount paid on Copperfield grant,-46 38

" " " Amount paid Walton & Walton on judgmentof George Hah n,-190 00

July 13, 1874. Amount paid on same,---58 17

Amount paid Hottel & Painter on old mill-account,-100 00

$2,044 36

It will be observed that of this sum of $2,044.36, no itemized accounts are filed, and no memorandum of any settlement, and no credits are allowed for board of grantee and his apprentices. In his deposition, which was taken November 30, 1874, James iS. Trout, in answer to questions on cross-exami-nation, deposes: "Question 38. How much did your father owe you at the time of signing the deed? Give the amounts and items and dates, and produce all the evidences of such indebtedness as you may have in your possession or under your control. Answer. Money advanced for taxes, $126.81; the tax bills are herewith produced. No. 1 to No. 9 [they are not in the record] represent the amount paid before signing the deed, and the $126.81 the whole amount paid for taxes before and since; amount paid for hire of hands from 1866, $345, but a small part of this paid since; this is by account kept both by father and myself. Amount of note paid J. P. Nelson, I don't think I have this note; amount of money drawn from Herald office, and clothing settled for at stores, for Mr. and Mrs. Isaac Trout, from 1866 to 1871, $425. These accounts are at Campbell, Danner &. Ott's, J. W. Danner's, Danner & Bros', S. A. Danner's, Heller & Bros', Heller & Coffman's, Fravel & Lacey's, and C. Cobb & McCann's, E. L. Cobb's, and B. Smith's, and moneys are evidenced by Herald office. Amount paid Williams & Bro., on Mclnturff judgment, $222.17, April, 1871; see the judgment marked satisfied. Amount paid Clower & Hockman, $20.83, April 29, 1871, evidenced by books of Williams Bros. Q. 39. Have you no vouchers for the payment of moneys from the Herald office, and for accounts of merchants, showing the payment of the same to, oron account of, Isaac Trout? A. These merchants' accounts were charged to me in my general account, and moneys furnished from the Herald office, both by myself and my different partners, without vouchers, further than charging to me on the Herald books. Q. 40. Do the entries, either upon the mercantile books, or the Herald books, show other than charges against you? A. I think they sometimes specify for whom. Q. 41. Can you tell the number of times they specify for whom, and the amounts, if any are so specified, in either of the said two kinds of accounts? A. I cannot tell how many, for it was generally understood that I supplied everything, both money and necessaries generally, for the family, —for my father; and the general running account was kept against me individually. Q. 42. Will you produce your book in which you kept your entries of account between yourself and father, for examination? A. The only accounts kept between...