Logan v. Ballard
| Decision Date | 05 March 1907 |
| Citation | 57 S.E. 142,61 W.Va. 474 |
| Parties | LOGAN v. BALLARD et ux. [a1] |
| Court | West Virginia Supreme Court |
Submitted January 22, 1905.
Syllabus by the Court.
Where land is conveyed to one who afterwards conveys the same to his wife, her deed not being recorded, and subsequently a judgment is obtained against the husband and docketed on the judgment lien docket, the land is prima facie liable to the judgment; and, if the wife claims the property as her sole and separate estate, it is incumbent upon her to allege and prove such facts as will create a resulting trust in her favor.
Appeal from Circuit Court, Monroe County.
Bill by J. D. Logan against M. C. Ballard and wife. Decree for plaintiff. Defendants appeal. Affirmed.
J. H. CROSier, for appellants.
John Osborne, for appellee.
SANDERS P.
The plaintiff, J. D. Logan, being a judgment creditor of the defendant M. C. Ballard, filed a bill in equity in the circuit court of Monroe county for the purpose of enforcing the same against real estate alleged to be owned by M. C Ballard; it having been conveyed to him by J. A. Meadows special commissioner, and J. M. England and Maggie England but the deed therefor not having been recorded. The cause was referred to a commissioner, with instructions to ascertain and report what real estate, if any, was owned by the judgment debtor, and to ascertain and report the liens thereon, their character and priorities. The commissioner reported that the land described in the plaintiff's bill was conveyed to the defendant M. C. Ballard, as in said bill alleged, and also reported the judgment of the plaintiff, set up in his bill, to be a lien thereon. Upon the coming in of this report, the defendant indorsed exceptions thereon and filed an answer, disclaiming the ownership of said land, and claiming that Kate A. Ballard, his wife, some 20 years ago bought and paid for, out of her own separate estate, certain land in Monroe county, took a deed therefor in her own name and continued to hold the title thereto until some time in the year 1903, when she sold the same, and immediately reinvested the proceeds of said sale in the land in controversy, thereby becoming the owner thereof by deed bearing date on the 13th day of January, 1904, and exhibited copies of the deeds. Some time thereafter Kate A. Ballard the wife of the defendant, filed a petition, asking to be made a party defendant, and alleging practically the same facts as are set up in the answer of her husband. Thereupon the plaintiff filed an amended bill, making the wife a party to the suit, and alleging that the deed to Kate A. Ballard, of date the 13th day of January, 1904, conveying the lands referred to in the original bill, was made to her by her husband, M. C. Ballard, and that the same was fraudulent and wholly without consideration, and was made with the purpose and intent to hinder, delay, and defraud the plaintiff in the collection of his debt, and that it does delay and de fraud the plaintiff in the collection of his judgment, and that the wife knew of and was a party to the fraud. Both of the defendants demurred to the original and amended bills, and the defendant Kate A. Ballard answered the original and amended bills, in which she denied the allegations of fraud and want of consideration, and alleged that the property was bought and paid for out of her own separate estate, and practically reiterated the allegations of her petition. Neither of the deeds to the defendant Kate A. Ballard were ever recorded. The judgment of the plaintiff was rendered on the 15th day of March, 1904, and properly recorded upon the judgment lien docket, thereby becoming a lien...
To continue reading
Request your trial