Hunter's Ex'rs v. Hunter

• Decision Date: 01 May 1877
• Citation: 10 W.Va. 321
• Parties: Hunter's Ex'rs v. Hunter, et. al.
• Court: West Virginia Supreme Court

10 W.Va. 321

Hunter's Ex'rs

v.Hunter, et. al.

Supreme Court of Appeals of West Virginia.

Decided May 1, 1877.

1. Matters not charged in the bill, or avered in the answer, and

not in issue in the cause, are not proper to be considered. upon the hearing.

2. It is not error, therefore, in a court to fail to pass upon the

validity of a deed, when the record does not show that it was called upon to do so by the pleadings in the cause.

3. The limitation provided in section fourteen of chapter one hun-

dred and four of the Code, commences to run at the time the deed was made, if it applies at all.

4. The limitations provided for in said section fourteen of chapter

one hundred and four, does not apply to a ease of actual fraud,

5. If the deed was in fact made with the intent, to hinder, delay

or defraud creditors, either prior or subsequent, the said statute will not bar a suit by the creditors, to impeach the deed for the fraud.

6. Although fraud in fact, even as to an existing creditor after five

years, must be shown to impeach the conveyance, it is not required that the actual or express fraudulent intent appear by direct and positive proof; circumstantial evidence is not only sufficient, but in most cases it is the only kind of evidence that can be adduced.

7. Fraud is to be legally inferred from the facts and circumstances

.of the case, where those facts and circumstances are such as to lead a reasonable man to the conclusion that the conveyance was made with intent to hinder, delay or defraud creditors, either prior or subsequent.

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8. Where the evidence shows such facts and circumstances, as the. conveyance being voluntary, the grantor being indebted to a

material extent, to the degree of embarrassment, so that the conveyance would probably throw a hazard upon the creditor, and these circumstances are wholly unexplained, it is for the court or jury to say, from circumstances like these, whether the grantor, intended to hinder, delay or defraud his creditors; and if the circumstances are such, whatever they may be, to make a prima facie case of fraudulent intent in the grantor, they are to be taken as conclusive evidence of the fraudulent intent, unless rebutted by other facts and circumstances in the case.

9. On the 1st day of May, 1866, H, who is largely indebted, to a

degree of embarrassment, caused a voluntary conveyance to be made to his wife, who did not take possession of the property, nor exercised any acts of ownership over it, as far as the record discloses, and the deed was not recorded for eight years after it was made, and not until after the death of H, and four years after the date of the said deed, H, caused another voluntary conveyance to be made to his wife, and in his will devises to her his property. Held:

That the circumstances surrounding the execution of the conveyance, show that it was made with the intent to hinder, delay, and defraud the creditors of the said H, and is fraudulent in fact, both as to the existing, and subsequent creditors of the said H.

10. A widow is not entitled to be endowed of lands until the purchase money secured by him thereon is paid.

11. It is not error to render a decree to sell the lands of a deceasud husband without ascertaining in the suit in what lands, conveyed in his life-time, the widow is entitled to dower, and assigning her dower therein, as she may properly bring a suit, or suits, herself for that purpose against the proper parties.

Appeal from, and supersedeas to, four decrees of the circuit court of the county of Greenbrier, rendered, respectively, on the 31st October, 1874; 30th June, 1875; 17th November, 1875; and 22d November, 1875, in a cause in chancery, pending in said court, wherein John A. Hunter's executors were plaintiffs, and Rebecca A. Hunter and others were defendants. The appeal was granted upon the petition of Rebecca A. Hunter.

The decree of 31st October, 1874, was rendered by J. W. Davis, a member of the bar of the circuit court of Greenbrier county, who was appointed by the counsel in the cause to act as Judge, and preside upon the trial thereof at the October term, 1874, of said court.

Hon. Homer A. Holt, Judge of the eighth judicial circuit, rendered the other decrees.

The following statement of facts was prepared by Johnson, Judge, who delivered the opinion of the Court:

On the 29th day of May, 1874, David M. Erwin, John Lipps, John W. Dunn, Wm. H. Montgomery, W. B. Reid, Moses Coffman, and Arch. Rader, administrators of Samuel Coffman, deceased, David J. Ford and Reese Hebron filed their petition in this cause, and asked to be made plaintiffs therein, and for relief against a fund not drawn in question by the bill. The petition proceeded as follows:" That there is a suit in chancery now pending in this honorable court, instituted by A. C. Snyder and Samuel H. Austin, executors of John A. Hunter, deceased, against Rebecca A. Hunter, widow and devisee of said John A. Hunter, the children and some of the creditors of said Hunter, the object of which is to have the aid of the court in administering the assets of said estate, adjusting the priorities of the respective creditors, and paying off the debts as far as the assets will go, &c, &c. all of which will appear by reference to the bill, exhibits and proceedings in said cause. The said cause has progressed so far as to have an account of the assets and debts of said estate directed to be taken by a commissioner of the court, for which purpose the creditors have been convened by publication by commissioner James Withrow, and many, if not all of the debts ascertained.

"Your petitioners further represent that they are, respectively, creditors of said estate. Their debts have been passed upon by said commissioner, and their re- spective amounts ascertained. They refer to said report for greater certainty. They are advised and believe and so charge that the fund brought before the court in said cause for the payment of debts is wholly insufficient for that purpose.; it is perhaps not more than sufficient to pay the preferred debts, if even sufficient for that purpose. They are willing and desirous that said fund shall be applied as far as it will go to the payment of debts, but there is another fund which they allege is liable for that purpose, and which they desire to bring before the Court, and to bring into the case, for that purpose. It is in part the brick house and small lot in the town of Lewisburff, adjoining the storehouse of J. E. Bell, conveyed to said Mrs. R. A. Hunter and her children by Uriah N. Warren and wife, on the 1st of May, 1866, a copy of which deed, recorded on the 11th day of April, 1874, is herewith exhibited as part of this petition. Another part of said fund consists of the house and four or five acres of land in the town of Lewisburg, where the said John A. Hunter resided at the time of his death, and where his family still reside. This house and lot were conveyed to the said R. A. Hunter for life, remainder to her children in fee, by Joel McPherson, commissioner of the circuit court of Greenbrier county, on the 11th day of April, 1870, and at the instance and direction of the said John A. Hunter. The said R. A. Hunter was the wife of the said John A. Hunter, and the children referred to were his as well as her children. Your petitioners will file herewith a copy of each deed, and a copy of the decree under which the latter deed was made as part of this petition. Your petitioners charge that said houses and lots are liable for the payment of all the debts of the said John A. Hunter. They were purchased and paid for by him, and were in every essential particular his property; the dwelling house and lot were decreed to him in the suit of Hunter v. Hunter, referred to in the deed, and he was and had been long in possession before he had the deed made to his wife and children; the other house and lot were paid j for by him, and had been long in his use and possession. His children were infants of very tender years, and had no estate or means with which to buy property, and so with Mrs. Hunter; she had no means with which to buy property; and they allege that these conveyances to them as aforesaid were merely voluntary and without consideration, and will not protect the funds against either the debts then existing, many of which were such, or which were afterwards created by the said John A. Hunter; that he must be just before he is generous. They charge that said deeds were fraudulently procured by the said Hunter to be made to his wife and children to delay, hinder and defraud his creditors, and that the law will so hold them to be, whatever the motive may have been, until the debts are all paid. The names of said Hunter's children are, Sallie R. J. Cope land, Bettie G. and Henry Hunter, and they are still all infants.

"In tender consideration of the premises, your petitioners pray that the said Rebecca A. Hunter, Sallie R. J. Copeland, Bettie G. and Henry Hunter, and all the creditors of the said John A. Hunter, deceased, who have proved or may appear and prove their debts, may be made defendants to this petition and be required to answer the same; that they may be permitted to appear as parties plaintiff in the cause aforesaid; that so much of the two houses and lots aforesaid as may be necessary for the payment of said debts may be sold for that purpose; and that your petitioners may have such other and general relief as comports with equity and good conscience, and as is applicable, to their case. May this petition be taken as their bill in the case; may the State's subpoena issue, and as in duty bound they will ever pray, &c."

"To this petition, on the 29th of October, 1874, Mrs. Rebecca A. Hunter filed her answer, in which she says: "That the conveyance made to her and her children of the brick house and lot, in the town of Lewisburg, on the 1st day of May, 1866, by U. N. Warren and wife, was not voluntary, or made with intent to hinder, delay, or...