Moore v. Ullman

• Decision Date: 19 March 1885
• Citation: 80 Va. 307
• Parties: MOORE v. ULLMAN AND ALS.
• Court: Virginia Supreme Court

80 Va. 307

MOORE v. ULLMAN AND ALS.

Supreme Court of Appeals of Virginia.

March 19, 1885

Appeal of J. S. Moore from decree of the chancery court of the city of Richmond, entered May 10th, 1883, in the cause wherein said Moore was plaintiff, and E. Ullman, M. Block, J. Baach and others were defendants. Court below dismissed the bill of Moore praying that a certain deed made by Baach to Ullman trustee, to secure a debt to Block, be set aside as fraudulent.

Opinion states the case.

Christian & Christian and Witt &amp Caskie for the appellant.

B H. Nash, Guigon and Cannon & Courtney, for the appellees.

OPINION

LACY J.

The case is as follows: On the first day of July, 1882, the appellant, Moore, filed his bill against the appellees charging that on the 16th day of March, 1882, the appellee, Jacob Baach, made a fraudulent deed of all his property to the appellee, Ullman, in trust, to secure a pretended and fraudulent debt to the appellee, Block; seeking by his bill to set aside this deed as intended to defraud him, the said Moore, of his debt against the said Baach, which amounted to $4,000. That Baach owed Block nothing; that Block had an interest in the store as partner; that the appellee, Ullman, had accepted the trust, and was about to sell under the deed.

The injunction was awarded, Moore's bill was amended, the account of Moore against Baach filed. Ullman, Baach and Block all answered, the latter denying the allegations of the bill.

The depositions of Moore and Baach were taken, and of many other witnesses. Block did not give his deposition, nor did he file or put in evidence the notes or bonds which evidenced his debt; and the books of Baach, who was a merchant, were not exhibited.

The cause coming on to be heard in the chancery court of the city of Richmond, on the 10th of May, 1883, the judge of that court being of opinion that the charges of fraud and co-partnership, made by the plaintiff in his original and amended bills, are not sustained by the proofs in the cause, dissolved the injunction and dismissed the bills of the plaintiff.

From this decree Moore applied to this court for an appeal, which was allowed on the 26th of May, 1883.

The claim of Moore is not denied, but admitted, and is secured in the deed as a deferred debt, second to that of Block. Baach in his answer sets forth the debt due Block as based upon $300, borrowed April 18th, 1867, and that Block being clerk in his store received a salary of $20 per month and board, from January 1st, 1867, to January 1st, 1870. On the 13th of January, 1870, Baach executed his note for $720, the exact amount of the salary. From January 1st, 1870, to 1876, the salary was $300 per year, and a note was then executed for this sum, $1,800. From 1876 to January 1st, 1880, the salary was $360, and a note was given in 1880, for $1,440; and then gave a bond payable twelve months after date. That at different times he had paid Block $195, the times not now remembered by him. That he was always willing to pay Block, and able to do so up to January 1st, 1881, and Block was willing to leave his money with him, and his reverses came in 1880 and 1881, and continued until they overwhelmed him in 1882.

Block answered, and set forth the same ground for the indebtedness. He gives dates to the $195 paid, and says $100 was paid in 1880, as part of interest on the $300 loan.

This debt to Block is claimed to be fraudulent and pretended, by the appellant. He offers evidence to show that Block came to his store from Germany in 1867, a youth about eighteen years of age, to live with Baach, who had married his sister; that he did not appear to have money; that he lived in the ordinary way, dressed neatly, was economical as could be expected for a person who lived in a store; could not have lived without drawing upon his small salary to some extent. That he never had claimed to have any money, and had sworn to his property returns year after year, listing only at the best a $10 watch, and personal property in all at $40; and for many years listed nothing. That while Baach had professed to owe him this account for salary for all the years from 1867 to 1880, for continuous and unbroken service as his clerk, that Block had not lived with Baach all the time during these thirteen years, but had been employed by a merchant in Richmond, named Gunst, for a year during this time--Baach's store being out in Chesterfield county, at the village of Midlothian, about twelve miles from Richmond.

There is certainly something very unusual in the account stated by Baach as due to Block, and secured in the deed. It is the salary of Block in full, month by month, for thirteen years. He had laid up every dollar of his earnings, and while he was thus saving of his money, he seemed to have never thought of interest when the salary was consolidated and a note executed therefor. He says he collected $100, part of the interest on the $300. What became of the residue of the interest? None appears to be provided for in the deed when the bond is given in 1880. And how does it happen that this young man who was so careful of his salary for thirteen years, got none in 1880, 1881, 1882?

It is a damaging circumstance to Block, that when he is thus assailed, his debt put in jeopardy by these witnesses, that he stands by and says nothing. He had answered, and had a right to rely upon the weight of his answer.

But his answer is contradicted by many circumstances. If he did not live in Richmond one year in other business, during these thirteen years, he could have proved where he lived. If he had sworn that he had no personal property, when he in fact was the owner of...