Miller v. Gillispie
| Decision Date | 22 November 1902 |
| Citation | 46 S.E. 451,54 W.Va. 450 |
| Parties | MILLER v. GILLISPIE et al. |
| Court | West Virginia Supreme Court |
Submitted June 13, 1903
Syllabus by the Court.
1. When a wife claims, in a contest against the creditors of her husband, to have purchased and improved real estate, there is a presumption against the bona fides of the transaction which she cannot overcome except by clear and full proof that the property and improvements were paid for by her with money derived from some source other than her husband.
2. Fraud is to be legally inferred from the facts and circumstances of the case, when they are such as to lead a reasonable man to the conclusion that the property was purchased and improved by the husband with intent to hinder delay, or defraud existing or future creditors.
3. When, in such case, the transaction is attacked by a subsequent creditor upon the ground of actual fraud, the fact that the transfer or conveyance is not upon a consideration deemed valuable in law may be treated as evidence of the fraud, and need not be alleged in the bill.
4. In the absence of an agreement to the contrary, depositions taken in one suit cannot be used in another, unless the parties are the same, or are in privity, and the subject-matter of the suits is also the same.
5. A deposition taken by the defendant in a suit brought by one creditor to set aside a fraudulent conveyance cannot be used by the defendant in another suit brought by another creditor to impeach the same conveyance, unless by agreement.
Appeal from Circuit Court, Webster County; W. G. Bennett, Judge.
Bill by Rachel F. Miller against J. M. Gillispie and Mary Gillispie. Decree for defendants, and plaintiff appeals. Reversed.
C. C. Higginbotham, Edward A. Brannon, Robert C Linn, and J. M. Hoover, for appellant.
Mollohan McClintic & Mathews, for appellees.
Assuming that the court properly overruled the demurrer to the bill in this cause, the sole question is whether the lower court properly held that certain real estate owned by Mary E. Gillispie, and situated in the town of Addison, Webster county, was purchased for her by her husband, who is insolvent, in fraud of his creditors, or by her with money so fraudulently furnished by him. Mrs. Gillispie seeks to overcome the presumption which legally arises against her by showing that the lot was bought by her with money of her own, money given to her by her father, money loaned to her by her father, money borrowed by her from her brother-in-law, and money made by her in keeping boarders, selling milk and butter, etc. The two adjoining lots cost $425. The first was conveyed to her by Benjamin Hamrick and wife by deed dated August 18, 1894, in consideration of $200, of which $100 was paid in cash, and the balance, due in one year, secured by a lien reserved in the deed. The other lot was conveyed to her by the same parties by deed dated October 16, 1897, in consideration of $225, the deed reciting the receipt of the purchase money. On the first lot so purchased there has been erected a dwelling house. The contract price for it was $625, exclusive of the painting, which cost $75, and the chimneys and flues, costing $75. Other improvements were put upon the property, including a cellar, costing, as stated by Mrs. Gillispie, $62; a barn, costing $65; a well, costing $40; a pump, $15; and a fence, $15. The total cost of the property and improvements was about $1,397. Mrs. Gillispie says she obtained the money with which this property was bought and improved in the following amounts and from the following sources: Money she had when married, June, 1894, $50; gift from her father, $20; from David Morton note, $20; from David Morton, borrowed money, $10; loan made to her by Delbert Gillispie, $150, for which note was given December 18, 1894; loan made to her by Benjamin Hamrick, $200, for $100 of which a note was given, dated February 4, 1895, and for the residue of which no note was taken; loan made to her by her father, I. W. Skidmore, $400, for which she gave her note, dated June 24, 1895; keeping boarders in the year 1896, $308.10; keeping boarders in the year 1897, $106.10; boarding Delbert Gillispie for three years and eight months at $10 per month, $440; boarding Cherry Woodsell, $80; boarding Rosa Gillispie, $50; milk and butter sold, $50; gift from her father, $100--making a total of $1,984.20. In support of her contentions and testimony, I. W. Skidmore says he furnished her the money which she claims he furnished. Delbert Gillispie testifies that he loaned her said sum of $150, and Benjamin Hamrick testifies that he loaned her the $200 which she says she borrowed from him. She repaid him $100 with the last $100 she received from her father, Skidmore. It is not denied that she kept boarders, although it is not admitted that she received from that source the amount she claims to have made thereby, nor that the profit realized was so large as she claims it was. Moreover, it is contended that her table was largely supplied from the store of her husband, although she says she had a good garden and kept cows. An effort is made to show that her father's circumstances were not such as to have warranted such liberality on his part toward his daughter. While he owns real estate assessed as containing 358 acres, valued at $1,306, it appears that the principal part of it is wild land, and only about 75 acres of it are cultivated. In the year 1890 he was assessed with personal property amounting to $574, including 2 horses valued at $90, 12 head of cattle valued at $163, and 31 head of sheep valued at $39. For the years 1891, 1892, 1893, 1894, 1895, 1896, 1897, 1898, and 1899 his personal property valuations for the purpose of taxation were, respectively, $456, $636, $389, $238, $223, $232, $279, $229, and $191. While some of the assessors say he mentioned the fact that he had loaned his daughter $400, he was never assessed with it, for the reason that he explained that it was not to be repaid unless he should need it. Other witnesses testify to his having borrowed, or attempted to borrow, small amounts of money at various times; while others testify to his having loaned money at various times in small amounts, to his having paid his bills promptly, and to his always having had money about him. It appears that he has been a thrifty and economical man, and he swears he considers himself worth seven or eight thousand dollars. The improbability of Delbert Gillispie's having loaned the defendant any money is insisted upon for the reason that he was clerk in a store at a salary of about $15 per month, with an allowance of $10 per month for board, and had no money, or very little, at the beginning of his services in January, 1893. In 1895 he was assessed with only $20 worth of personal property; in 1896 with $100, of which $55 was listed under the head of "Money, credits, and investments"; in 1897 with $90, of which $50 was listed under said head; in 1898 with $200, of which $150 was listed under said heading. He says he had about $50 when he came there, besides $15 or $20 due him from another person, which he collected; that he sold a watch for $10 or $12; that he taught a school of penmanship, from which he realized $25 or $30; and that he made as much as $50 from the sale of books, rings, and other articles not kept in the store by his employers. But on March 7, 1894, he had a settlement with his employers, which showed a balance due him of $42.34, as shown by the books, and on the 18th day of December, 1894, he claims to have made this loan, and to have had in money at that time about $277, from which to make it. The ability of Hamrick to make his loan of $200 seems to be conceded.
Other facts bearing upon the question of the bona fides of the transaction between Mrs. Gillispie and her husband necessitate the traversing of a good deal of ground. In 1892 the firm of D. M. Miller & Co., engaged in timber and mercantile business, was composed of D. M. Miller and J. M Gillispie. Afterwards, and before the dissolution of the copartnership, J. M. Gillispie and his codefendant, Mary E. Gillispie, intermarried. The business of the firm was conducted by Miller and Gillispie. They had a store at Cowen, Webster county, under the personal supervision of Miller, and another at Addison, under the personal control of Gillispie. Delbert Gillispie was a clerk in the store at Addison. He was a brother of J. M. Gillispie, and after the marriage of the latter boarded with him, as did also the wife of Delbert Gillispie part of the time. On the 27th day of January, 1896, the firm was dissolved by the death of Miller. After that event the plaintiff herein, Rachel F. Miller, the widow of D. M. Miller, and J. M. Gillispie, formed another copartnership under the firm name of J. M. Gillispie & Co., and continued the business until in March, 1897, when the new firm was dissolved. The dissolution agreement provided that Gillispie should take the stock of goods and store accounts of the firm, pay all debts of the firm due or to become due, and secure to the plaintiff the payment of one-half of the surplus. An invoice showed the assets at that time to be about $7,600 of which the stock amounted to $4,200 and the accounts to $3,400. Gillispie continued the business at Addison until in January, 1898, when he made an assignment for the benefit of his creditors, whose claims amounted to several thousand dollars in excess to the amount realized from his assets. He admits that the business of the firm as first composed was profitable, and that the new firm made a little money during the first year, but nothing the second year; and he claims the business after the retirement of Mrs. Miller was crippled by reason of G. A. Lynch,...
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