Livey v. Winton
| Decision Date | 02 November 1887 |
| Citation | 30 W.Va. 554 |
| Parties | Livey v. Winton and Insurance Co. v. Dunning. |
| Court | West Virginia Supreme Court |
In September, 1883, there was no statute in this State authorizing an attachment in equity for a purely legal demand, and therefore a bill filed to enforce an attachment-lien for a demand purely legal was dismissed because the court had not jurisdiction. (p. 559.)
If the court had no jurisdiction when the bill was filed, it could not be conferred by an amended bill. (p. 559.)
A trustee in a deed of trust is the agent of both parties, and bound to act impartially between them. He is bound to bring the estate to the hammer, for the best interest of his cestui que trust, and should use all reasonable diligence to obtain the best price for the land. (p. 560.)
Where the owner of a foreign judgment brought a suit in equity, and issued an attachment, and had it levied on lands on which there existed a deed of trust, the trustee in that trust was justified in resorting to a court of equity to have the trust enforced under its supervision, although the court, at the time, had no jurisdiction of attachments in equity for demands purely legal; and although, when these two suits were heard together, it was the duty of the court to dismiss the bill in the attachment-suit, yet the plaintiff" in the attachment-suit, having answered the bill in the other suit, attacking the trust-deed as fraudulent as to the foreign judgment, said answer may be treated as a cross-bill, and the latter suit retained, and the whole matter be there litigated and settled. (p. 501, 562.)
of Fraud,
Transactions between father and child, husband and wife, brother and sister, between whom there exists a strong natural motive to provide for each other, at the expense of creditors, when sought to be impeached as fraudulent, require less proof to show fraud, and, on the other hand, when a prima facie case is made, much stronger proof to show fair dealing than would be required if the transaction were between strangers. (p. 563.)
Where a husband confesses a judgment to a, trustee for the benefit of his wife, or executes a trust deed for the same purpose, the burden is thrown upon the wife to show, as against creditors attacking either for fraud, that the transaction was fair and bona fide, to secure to her a subsisting and valid debt. (p. 564.)
It is improper to order an account merely to establish by testimony the allegations of the bill. (p. 568.)
Where the court hears the cause, as well as the report of the commissioner, as upon the depositions taken in the cause long after his report was filed, and sustains an exception to the report, as to which he could not decide without looking into the deposition taken in the cause after the report had been filed, and, as to such matter, decrees against the report, when the same depositions show that, on another issue as to the amounts due on the demand set up in the cross-bill, the plaintiif in the original bill shall have large credits, which the court refuses because it would be against the finding of the commissioner, when it appears it was improper to refer the cause to a commissioner, and no exception was made by the plaintiff to the report, and it appears the court has not considered the depositions as to both issues, but only one, this is error, for which the decree will be reversed. (p. 569.)
E. T. Jones, Z. D. Strader, S. V-Woods, and A. U Winton for appellant.
S. M. Reynolds, C. P. Sherman, and T. B. Swann for appellees.
Johnson, President:
At the August rules, 1883, the plaintiff in the second of these causes, the Mutual Life Insurance Company of New York, tiled its bill in the Circuit Court of Randolph county, in which it alleged that it had at the September term, 1881, at Williamsport, Pennsylvania, in the Federal Court then and there sitting, recovered a judgment against A. B. Dunning and W. W. Winton for $9,000.00 interest, and costs; that it filed a proper affidavit with the clerk of the Circuit Court of Randolph county on the twenty second day of June, 1883, and an attachment was thereupon issued, and levied on a moiety of a number of tracts of land in said county, as the property of the defendant Winton, to satisfy said judgment; that the attachment was duly levied; that, as the statute provides, it recorded a lis pendens. The bill alleges that the defendants are non-residents of the State, and prays for a survey and plat of said lands, and that they may be sold to satisfy the said debt, etc. At the September rules, 1883, the bill in the first suit was filed by Thomas Livey, trustee for C. Winton, against W. W. Winton, C. Winton, and the Mutual Life Insurance Company of New York, in which it alleges that W. W. Winton was indebted to said plaintiff, in his character as trustee for C. Winton, in the sum of $28,583.73, and executed a mortgage or deed of trust on the sixth day of April, 1880, whereby he conveyed to the plaintiff, as such trustee, the undivided half of 24 tracts of land in Randolph county; some of which lie in Pocahontas county, West Virginia. The said lands are described in the mortgage, a copy of which is filed as an exhibit with the bill. The bill charges that the debt had been long due, and no part thereof has been paid, and that the cestui que trust, C. Winton, had requested the trustee to collect said debt. The plaintiff further alleges that he is informed and believes that the Mutual Life Insurance Company of New York had sued out an attachment upon the said lands, and was seeking to subject them to the payment of a large sum of money, founding its claim on an alleged judgment recovered in the Circuit Court of the United States for the Western District of Pennsylvania against W. W. Winton and others for $9,000.00 with interest and costs. Plaintilf says he is informed and believes that a large part of said judgment had been paid to the said insurance company. The prayer of the bill is that the liens may be ascertained upon the said real estate, and that the court decree a sale of the said undivided half of said lands, or so much as might be necessary to pay off the plaintiff's mortgage, with interest and costs, and for general relief. On the day the bill was filed, Mrs. Winton, by counsel, answered the bill, admitting all its allegations.
On the eleventh of January, 1884, the causes were heard together, and referred to a commissioner, who was directed "to take proof, ascertain, and report the real estate owned by the defendants, W. W. Winton and Abraham B. Dunning; the state and condition of the title thereto, and the annual rental value thereof; the liens thereon, their character, amounts, and priorities, and to whom owing," etc. He reported as required, and reported the lien by mortgage principal and interest, at $35,653.44; and first in priority, and the next and only other lien, the judgment debt of the Mutual Life Insurance Company of New York, principal and interest and costs, at $12,394.50. The insurance company, by counsel, excepted to this report, because the mortgage was given priority. At December rules, 1583, in the second cause, the plaintiff, the insurance company, filed an amended bill, in which, "by way of amendment to its original bill, it complains, and says that in addition to the facts and allegations set up in said original bill, which said original bill is made a part of this amended bill, and asked to be read as a part thereof," that on the sixth of April, 1880, the said mortgage (describing it) was executed, etc. It charges that said mortgage was without valuable consideration, and it was executed for the purpose of hindering, delaying, and defrauding the plaintiff from collecting its debt set up in the original bill, etc. The said Winton "executed the said trust-deed and penal bond therein mentioned (if any such bond was in fact executed) for no other purpose than to reserve for his own use and benefit, in the hands of the said C. Winton, who is his wife, the said several valuable tracts of land, to the prejudice of the rights of the plaintiff and his other creditors. The bill prays that the said trust deed be set aside, and the land subjected to sale for the satisfaction of plaintiff's demand, and for general relief.
At the September term, 1884, the company filed its answer to the bill of Livey, in which the execution of the trust-deed to Livey is admitted; but it denies that it was executed for the purpose therein indicated; denies that W. W. Winton was ever indebted to the defendant, 0. Winton, or to Livey as her trustee, in the sum of $28,583.73, or in any sum whatever; sets up its judgment for $9,000.00 interest, and costs; denies that a large part of said judgment had been paid; charges that the trust deed was executed without any consideration whatever, except the design of the said W. W. Winton, C. Winton, his wife, and the plaintiff, Thomas Livey, his son-in-law, to defraud respondent out of said debt, and to hinder, delay, and defraud respondent and the other creditors of said W. W. Winton by incumbering said lands with a pretended debt, sufficiently large to swallow up every cent for which said lands could be sold, and thus leave no chance for respondent to collect its just demand; that said trust-deed is not a valid lien on said lands, and ought not to have priority over its attachment-lien. Said respondent prays that said trust-deed be annulled and set aside, at least to the extent that it shall not have priority over said attachment,
At the September term, 1885, W. W. Winton, Livey, trustee, and C. Winton filed...
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