Miller v. Correll.

• Decision Date: 23 September 1924
• Docket Number: No. 5092.,5092.
• Citation: 97 W.Va. 215
• Parties: Miller v. Correll.
• Court: West Virginia Supreme Court

97 W.Va. 215

Miller

v.Correll.

No. 5092.

Supreme Court of Appeals of West Virginia.

Submitted May 29, 1924.

Decided September 23, 1924.

1. Fraudulent Conveyances Conveyance on Valuable Consideration not set Aside in Absence of Showing Grantee's Knowledge of Fraudulent Design.

Where the evidence fails to show with reasonable certainty that the grantee in a deed had knowledge of a fraudulent design on the part of the grantor in selling the property, and it is proved that a valuable consideration passed to the grantor, the conveyance will not be set aside for alleged fraud at the suit of a creditor of such grantor. (p. 217). (Fraudulent Conveyances, 27 C..T. § 175).

2. Same] Conveyance of Land Between Near Relatives not Badge of Fraud, Though May Affect Degree of Proof.

A conveyance of land between near relatives is not a badge of fraud when such conveyance is attacked by creditors, though it may require less proof to show fraud than where such relationship does not exist. (p. 219). (Fraudulent Conveyances, 27 C. J. § 152).

3. Same Retention of Possession of Real Estate by Grantor After Conveyance Only Prima Facie Evidence of Fraud.

The retention of the possession of real estate by the grantor after a conveyance thereof by deed is only prima facie evidence of fraud, which may be rebutted by proof. (p. 220).

(Fraudulent Conveyances, 27 C..1. § 294).

Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.

Appeal from Circuit Court, Monroe County.

Suit by R. C. Miller against II. F. Correll and another. From a decree for plaintiff, defendants appeal.

Reversed, and, bill dismissed.

Thomas N. Read, for appellants.

R. L. Clark, for appellee.

Miller, Judge:

The purpose of this suit was to have set aside a deed from the defendant H. F. Correll to his sister the defendant Anne Correll, alleged to have been executed to hinder, delay and defraud the creditors of the said H. F. Correll, and especially the plaintiff.

Plaintiff alleges in his bill, that in the month of April 1920, he sold to defendant II. F. Correll a tract of 106 acres of land for $3,000.00, of which $400.00 was paid in cash, the balance represented by three notes executed by defendant H. F. Correll, due in one, two and three years; that when the first and second purchase money notes were not paid at maturity, he advised Correll that he would proceed to sell the land under his vendor's lien, and that owing to the general depreciation of farm land in that vicinity, it was probable that the land would not! sell for enough to satisfy the three notes above mentioned, and that he would look to defendant for any loss occasioned by such depreciation. It is further alleged that at the time plaintiff so advised Correll of his intention to sell the 106 acres, defendant was the owner of another tract of 95 acres in the vicinity, and that within a few days after such notice H. F. Correll sold and conveyed to his sister Anne Correll this tract, for the purported consideration of $4,000.00, but that no consideration in fact passed from Anne Correll to her brother; and that the sole purpose of the transfer of the said land was to hinder, delay and defraud CorreH's creditors, especially the plaintiff, of which fraudulent intent the defendant Anne Correll had notice before and at the time she purchased the land. Plaintiff alleges, that at the sale of the 106 acre tract, he purchased the same for $2,000.00, and thereby suffered a loss of $1,109.75, for which he recovered a decretal judgment in the decree confirming the sale of the land to him. It is also alleged that the defendant H. F. Correll is insolvent.

A certified copy of the deed from H. F. Correll to Anne Correll is filed as an exhibit to the bill, and prayed to be made a part thereof. Besides the 95 acres of land, the deed purports to convey "all the personal property belonging to the said parties of the first part," though no allegation in the bill mentions this fact. The bill also purports to exhibit the final decree in the vendor's lien suit, but we do not find it in the record here presented.

The circuit court found that the transfer of the 95 acres of land was f raudulent and decreed a sale of the same.

The main question presented here is whether the defendant Anne Correll can be charged with participating in the fraud, if any there was, in the transfer of the property to her by the deed of her brother. If the grantor was guilty of fraud, did she know of his fraudulent intent, or had she knowledge of such facts as to put her on inquiry to ascertain the purpose of the grantor in disposing of his; property? By her answer and depositions, she denies any knowledge of fraudulent intent on the part of her brother. She says she bought the land only to secure her brother's indebtedness to her, and that H. F. Correll told her that plaintiff had agreed to take back the 106 acres in settlement of his claim and that the matter was settled. Plaintiff himself, in his deposition, says that in a conversation with Miss Correll, the last of April or the first of May, 1922, after the making of the deed to her on February 21st of that year, about three weeks after the institution of the vendor's lien suit, he told her "that rather than have any trouble that I would take the place back, and if he would deed it back that I wanted half of the wheat at first, but I had agreed to take half of the wheat if he would deed it back to me and give me a right of way to the road like I had it when I sold it to him and turn the place over to me, but he never did agree to give me the right of way positively, and he said he would come over and we would have the deed written by Mr. Sydenstricker, but he never did come and he had a deed made up at Greenville, and I heard that he didn't deed me the right of way, or half of the wheat, and so I just told her I wouldn't accept it, and then she said that if the wheat was all that was in the way that she would pay for the wheat herself, but she; didn't know what he would do about the right of way to the road down that way, and that was all that was between us about me taking the place back.'' Miss Correll says she first learned that a satisfactory settlement had not been reached between her brother and the plaintiff about the last of April. She then went to plaintiff's home, where the conversation about which plaintiff testified took place. She says she not only offered to pay for the half of the wheat, as plaintiff says, but also offered to pay some back taxes on the 106 acres, of which plaintiff was complaining. She says she went to plaintiff's home because she learned from her brother that plaintiff was threatening to institute some kind of suit against the Miller land. Plaintiff did not obtain a decree of sale in the vendor's lien suit until at the July term of court, and the final decree in the cause was rendered November 14, 1922. In the meantime he made no attempt to proceed, by attachment or otherwise, against the personal property conveyed by Correll to his sister by the deed of February 21st.

There is no attempt to show that Anne Correll knew of any controversy between her brother and plaintiff before she purchased the property in question. In his depositions plaintiff says that he guessed Miss Correll knew of her brother's indebtedness to him, but he could give no reason why she should have known even this fact, except that she ought to have known it. As soon as she learned that the vendor's lien suit was being brought, she went to plaintiff, on the occasion above mentioned, because, she says: "My brother was unable to go; his health was such that he was unable to make the journey, and he asked me to go to see Mr. Miller, and Mr. Miller had practically agreed to have the land returned to him, conveyed to him by deed." This was more than two months after the conveyance of the 95 acres. We do not think that the evidence shows any knowledge of fraud by the defendant Anne Correll.

It appears that a valuable...