Littlestown Sa v. Inst.

• Decision Date: 15 January 1924
• Docket Number: (No. 4859.)
• Citation: 121 S.E. 169
• Court: West Virginia Supreme Court
• Parties: LITTLESTOWN SAV. INSTITUTION. v. BREAM et al.

121 S.E. 169

LITTLESTOWN SAV. INSTITUTION.

v.BREAM et al.

(No. 4859.)

Supreme Court of Appeals of West Virginia.

Jan. 15, 1924.

(Syllabus by the Court.)

Appeal from Circuit Court, Berkeley County.

Suit by the Littlestown Savings Institution against J. Herman Bream and others. From orders overruling a motion to quash two attachments, the named defendant appeals. Orders quashed, and cause reversed and remanded.

Kilmer & Byrer, of Martinsburg, for appellant.

Martin & Seibert, of Martinsburg, for appellee.

McGINNIS, J. The controversy here arises upon the action of the circuit court of Berkeley county in overruling the motion of the defendant J. Herman Bream to quash two attachments, one of which is an order attaching the property of the defendant J. Herman Bream, and the other is an order for his arrest. The order of attachment in each case was executed as directed therein, certain property was levied upon under the order, and said defendant was arrested under an order of arrest, both of which orders were issued by the clerk of said court.

At the time of the issuance of the attachment for the person of the defendant, a chancery suit was pending in said court, in which Littlestown Savings Institution was plaintiff, and J. Herman Bream, —— Bream, his wife, Margaret Bream, H. P. Thorn and Mary E. Thorn, his wife, and Charles S. Trump, were defendants. This cause came on to be heard in said court on the 24th day of November, 1922, and a motion was made by the defendant to quash the attachment against defendant's property, and the order of arrest of the defendant, on the ground of the insufficiency of the* affidavits upon which said attachment and order of arrest were issued, which motions in each case the court overruled, and this case comes here upon an appeal from said order refusing to quash said attachment, and order of arrest.

The affidavit which is the basis upon which the order of attachment against the property of the defendant J. Herman Bream was issued, after stating that the plaintiff is about to institute a suit in equity in said court against the said J. Herman Bream for the recovery of a claim or debt arising out of a contract, is as follows:

"That the nature of the claim is a certain note made, executed and delivered by Melvin R, Collins, dated April 16, 1921, payable to the order of J. Herman Bream on demand for the sum of $2,120, with interest at 5 1/2 per cent.; that the said J. Herman Bream assigned all of his right, title and interest in the within note to the Littlestown Sayings Institution, a corporation, of Littlestown, Pa., and guaranteed the payment and waived protest thereof; that interest upon the said note had been paid to December 31, 1921, and that affiant believes that the plaintiff is justly entitled to recover at the least in said suit the sum of $2,120, with interest thereon from December 31, 1921, to the date of payment at the rate of 5 1/2 per cent.; that affiant believes that the defendant J. Herman Bream has property and rights of action which he conceals; that affiant further states that the following are the material facts relied upon by him to show the existence of ground upon which this application for attachment is based:

"That heretofore, to wit, during the month of December, 1921, the said J. Herman Bream purchased of and from H. P. Thorn a certain lot of ground or parcel of real estate with the improvements thereon situate lying and being in the city of Martinsburg, county of Berkeley and state of West Virginia, and being known as lot No. 736 on the plat of H. P. Thorn's subdivision of lots 20, 21, 22, 23, 24, 26 and 59 of Commanding View, an addition to the city of Martinsburg, which plat is recorded in Deed Book No. 142, p. 63, of the land records of Berkeley county, W. Va., in the office of the clerk of the county court; that he caused a deed at that time to be made for the said lot to one Margaret Bream, a nonresident of the state of West Virginia and a sister of the said J. Herman Bream; that there has been paid upon the purchase of the said lot of ground, with its improvements, by him, the entireamount thereof, except the sum of $799, with interest thereon from the 1st day of June, 1922, and that the balance of said indebtedness is evidenced by a note given by the said J. Herman Bream to H. P. Thorn for said amount, dated June 1, 1922, and payable 30 days after its date; that the said deed had not yet been delivered to the said J. Herman Bream; that the said J. Herman Bream, when approached by affiant relative to the payment of the indebtedness herein set out, informed said affiant that he had no property out of which the money could be made; that such statement was made to affiant on the 21st day of July 1922; that affiant is informed that the said J. Herman Bream has other rights of action and property, to wit, notes and other property which are either in his possession or under his control, but of which affiant had no further knowledge; that, the said J. Herman Bream is attempting to convert a material part of his property into money or securities with intent to defraud his creditors and particularly the plaintiff; that the said J. Herman Bream after informing the affiant on the morning of the 21st day of July, 1922, that he had no property out of which this debt could be made and asked for half an hour in which he might consult his attorney, went to the office of one Charles S. Trump, and there made a bill of sale upon one certain Marmon '34' automobile, known as a chummy roadster model engine No. 3S437P, and assigned the said automobile to the said Trump, who is a member of the Berkeley County, W. Va., Bar, and the said bill of sale was admitted to record and is dated July 19, 1922, and acknowledged on July 21, 1922, and was admitted to record at 10 minutes past 10 o'clock on the 21st day of July, 1922, in the clerk's office aforesaid, and after the statement aforesaid that the consideration therein named is $1,000."

This affidavit fails to show either positively or inferentially when the plaintiff's right of action first accrued. It states, in alleging the statutory grounds for the attachment, "that the defendant J. Herman Bream has property and rights of action which he conceals, " and in the statement of material facts upon which the application for the attachment is based the affidavit alleges that—

"In the month of December, 1921, a certain lot, described in his affidavit, was purchased by the defendant Bream, from H. P. Thorn, and the entire amount of the purchase price was paid by Bream except $799, with interest from June 1, 1922, and that said Bream gave his note on said first day of June for that amount, and that said Bream at that time caused the deed to said lot to be made to one Margaret Bream, a nonresident of this state and a sister of said Bream, and that the deed has not been delivered to said J. Herman Bream."

Bream did not owe this note, which is the basis of plaintiff's suit, to plaintiff until it was assigned to it. If this lot transaction took place before the note was assigned to plaintiff, may it be said that this transaction was a fraudulent concealment of his proper ty or rights of action? There is no statement in the affidavit that shows that this transaction with reference to the purchase and conveyance of this lot was not proper and innocent. It does not allege that this debt was owing to the plaintiff at the time, or that he owed any one else at that time.

The affidavit fails to negative the fact that defendant Bream was acting as the agent of his sister, when he purchased the lot in question; true he gave his note for the balance of the purchase money, but for aught the affidavit discloses this might have been an arrangement made between him and Thorn, the grantor, for the reason that the grantee was not a resident of the state, and was not present at the time to sign the note, and that Bream gave his note, knowing that before his sister could have the deed delivered to her this balance of tire purchase, price must be paid by her; or he may have purchased the property with his own money, and upon his own credit with the utmost good faith, and intended to have the same conveyed to her as a gift. The facts alleged in the affidavit in reference to the purchase of the lot mentioned therein do not necessarily show any fraudulent intent. In the opinion of the court, by Judge Snyder, in the case of Sandheger v. Hosey, 26 W. Va. 221-224, the court holds that—

"The 'material facts, ' required by the statute, are the allegations which must produce in the mind of the court the conclusion that the ground for the attachment exists. This requirement is intended to protect the alleged debtor against an abuse of the attachment law. The facts stated must be capable of denial and disproof, and they must of themselves show an improper, illegal or fraudulent act; and they must exclude every reasonable conclusion that the act was proper and innocent. * * * An affidavit that the defendant did an act which, of itself, does not show a fraudulent intent, cannot certainly establish such intent. It is the fraudulent * * * intent of the defendant to withdraw his effects from the reach of the plaintiff, his creditor, that gives the right to pursue him by attachment; and consequently, unless both such act and intent are deducible from the material facts stated, the affidavit is insufficient"—citing Delaplain v. Armstrong, 21 W. Va. 211.

The fact that the defendant, when approached by the affiant relative to the payment of the indebtedness set out in the affidavit, said that he had no property out of which the money could be made, does not strengthen the affidavit, or tend to show that the lot transaction mentioned was a fraudulent concealment of his property. This affidavit in so far as it refers to the transfer of the lot to his sister is insufficient.

The other ground for the issuance of the attachment against the property of defendant is:

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