Moore v. Gainer et al
| Decision Date | 25 April 1903 |
| Citation | 53 W.Va. 403 |
| Parties | Moore v. Gainer et al |
| Court | West Virginia Supreme Court |
When a conveyance in favor of a relative leaves a man without means to satisfy his creditors, it is the basis of a strong suspicion of fraud; it is prima facie fraudulent, and calls upon the grantee to furnish strong proof of the bona fides of the transaction, (p. 410).
Point 3 of the syllabus in Knight v. Nease, et al, decided at the present term, applied, (p. 410).
Appeal from Circuit Court, Randolph County. Bill by S. A. Moore against S. W. Gainer and others. Decree for defendants, and plaintiff appeals.
Reversed.
W. T. George, for appellant. Harding & Harding, for appellees.
On the 10th day of August, 1899, appellant, S. A. Moore, commenced his suit in equity in the circuit court of Randolph County, against W. C. Gainer, S. W. Gainer, M. L. Gainer, J. N. B. Crim and A. B. Coberly; and at the September rules then next ensuing, filed his bill in the cause to set aside a certain deed alleged to be fraudulent and void, executed by W. C. Gainer and wife to S. W. Gainer, bearing date on the 11th day of March, 1897, which conveyed to said S. W. Gainer sixty-nine acres of land, described therein. Said S. W. Gainer filed his demurrer to the bill, which, was overruled. He then answered it, denying all of the material allegations thereof, to which answer the plaintiff replied generally. There was no appearance by any of the other defendants. Depositions were taken by both plaintiff and defendant, S. W. Gainer, and filed in the cause.
On the 4th day of May, 1901, the cause was heard upon the bill, answer of S. W. Gainer thereto, and general replication to the answer; bill taken for confessed as to all of the other defendants, and upon the depositions. Upon consideration thereof the court dismissed the bill, and decreed that plaintiff should pay the costs of said suit. From this decree Moore appeals, and assigns as error that the circuit court should not have refused him the relief prayed for; and should not have dismissed his bill.
It is alleged in the bill that on the 22nd day of March, 1897, before one I). E. Coberly, a justice of said county, plaintiff recovered a judgment against said W. C. Gainer, M. L. Gainer and A. B. Coberly for $254.53; and that said judgment was for merchandise and cash furnished by plaintiff to said W. C. and M. L. Gainer, during the years 1895, 1896 and 1897; that at the time said credit was given by plaintiff, W. C. Gainer owned said sixty-nine acres of land; that on the 11th day of March, 1897, said W. C. Gainer, with intent to hinder, delay and defraud plaintiff in the collection of his said demand, fraudulently conveyed the whole of his said real estate to his uncle, S. W. Gainer, for a pretended consideration of $650.00; that no part of said consideration mentioned in the deed was ever paid to said W. C. Gainer; and that said conveyance was a scheme on the part of W. C. Gainer and his uncle, S. W. Gamer, to cheat and defraud plaintiff out of his said demand. Plaintiff further alleges that, in addition to the above mentioned judgment, said W. C. Gainer is indebted to him as assignee of said J. N*. B. Grim, upon certain notes then in judgment, amounting to about $300.00.
The answer of said S. W. Gainer denies all fraud, or participation in any fraud, and all notice of fraudulent intent on the part of said W. C. Gainer in the execution or delivery to him of said deed, and avers that the said deed was made upon and for a valuable consideration, actually paid by him, in good faith as set forth in said deed.
The deed recites the consideration thereof to be all his said S. W, Gainer's right, title and interest in one bond of two hundred and fifty dollars, paid in stock by him to the Montrose Oil Company; two hundred dollars to be paid in twelve months from that date; and two hundred dollars to be paid on or before the 11th day of March, 1899, with interest on each of said last mentioned sums from the date of the deed, and for which the grantee executed his two several promissory notes, payable to W. C. Gainer as aforesaid; and to secure the payment of which a lien was reserved on the face of the deed on the land. The deed was prepared and the acknowledgment thereof taken and certified by D. E. Coberly, justice, another nephew of S. W. Gainer, and cousin of W. C. Gainer. It was admitted to record on the 12th day of March, 1897. It is shown by the evidence that the two notes, shortly after their execution, and in the same month, were taken by W. C. Gainer to one C. C. Coberly, a son-in-law of S. W. Gainer, and cousin of W. C. Gainer, who lived some distance away, and sold and assigned to him for $285.00 cash; but it is also shown by C. C. Coberly's evidence that he knew nothing personally about the sale of the land; that he had no knowledge or notice of W. G. Gainer's indebtedness, except that it was rumored that he was in debt; that he bought the notes at a discount of $115.00 and paid W. G. Gainer $285.00 therefor; and that he shaved or traded in paper to some extent. He also states that he was not requested by S. W. Gainer to buy the notes. After the assignment thereof, S. W. Gainer made a payment or payments to C. C. Coberly on one of the notes, and a proper credit was endorsed thereon. On the 4th day of October, 1899, S. W. Gainer made settlement with C. C. Coberly of the amount due on the notes, and then sold and conveyed to him, by deed of that date, the sixtynine acres of land for the consideration of $500.00. This deed recites the payment of $315.00 cash; $35.00 to be paid October 4, 1900; and $100.00 October 4, 1901, with interest on both of said sums from that date; for which sums said Coberly executed his two promissory notes to S. W. Gainer; and to secure the payment of which, a lien was retained on the land on the face of said deed. The said $315.00 cash payment was made up of $50.00 or $55.00 cash paid by Coberly to S. W. Gainer, the balance due on one of the $200.00 notes, and the other one, principal and interest in full. Said D. E. Coberly, justice, who was in the habit of preparing deeds in that neighborhood also wrote the last mentioned deed, and took and certified the acknowledgment of the signatures of S. W. Gainer and wife thereto. A notice of lis pendens had been duly filed, on the 10th day of August, 1899, the day on which said suit was instituted.
As to said W. C. Gainer, it is shown that he was not only indebted to the plaintiff and to said Crim at the time of his conveyance of said land in the amounts of said two judgments, respectively, but was also liable as surety for his brother, M. L. Gainer. The amount of his last mentioned liability is not definitely fixed, but was supposed to be about $300.00. The land was worth, when conveyed by him to S. W. Gainer, about $500.00. This was all the real estate owned by him. He also had two young horses, or, as a witness stated, one horse and one cow. Shortly before he conveyed the land to his uncle, he had offered to convey it to H. T. Lawson, another uncle, saying to Lawson at the time, that he was on M. L. Gainer's notes "for W. Ya.]
Moore v. Gainer. a right smart of money," that "the estate would not pay out; and that he was not afraid to trust Lawson on a sham; that he wanted Lawson to deed the land back to his (Gainer's) wife twelve months afterwards." Lawson, however, would have nothing to do with the matter. Gainer then offered to convey the land to C. J. Schoonover, another relative, making to him substantially the same statements which he had made to Lawson; but Schoonover also declined to take a deed. After his conveyance to said S. W. Gainer, he stated to, or in the hearing of, at least three persons, that the said deed was a sham. There are other facts and circumstances disclosed by the record tending to prove fraud on the part of W. C. Gainer in this transaction. He did not testify as a witness in the cause.
So far as W. C. Gainer is concerned, the evidence proves that he executed and delivered said deed to his uncle with intent to delay, hinder and defraud the plaintiff and others to whom he was liable, in the collection of their demands against him.
However, it sufficiently appears that S. W. Gainer was and is a purchaser of the land for a valuable consideration; and unless he had notice of the said...
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