Mullens v. Frazer

• Decision Date: 23 May 1950
• Docket Number: Nos. 10191-10193,s. 10191-10193
• Citation: 134 W.Va. 409,24 A.L.R.2d 380,59 S.E.2d 694
• Court: West Virginia Supreme Court
• Parties: , 24 A.L.R.2d 380 MULLENS, v. FRAZER et al. Case

Page 694

59 S.E.2d 694

134 W.Va. 409, 24 A.L.R.2d 380

MULLENS, v. FRAZER et al.

Case Nos. 10191-10193.

Supreme Court of Appeals of West Virginia.

Submitted April 25, 1950.

Decided May 23, 1950.

Syllabus by the Court

1. Code, 40-1-1, as amended, 'applies to one who has a right to recover damages for a tort; and one so entitled may maintain a suit to set aside a deed so made, without having his claim reduced to judgment.' Thomas v. Lupis, 96 W.Va. 100, Pt. 1, Syl. .

2. By virtue of Code, 40-1-1, as amended, a creditor need not reduce his claim to judgment as a prerequisite to his right to maintain a suit to set aside allegedly fraudulent conveyances.

3. In a suit, under Code, 40-1-1, as amended, brought to set aside allegedly fraudulent conveyances, unless the grantor acts as a mere mediary to transfer title, both the grantor and his alienee are necessary parties.

4. Where, in a suit, under Code, 40-1-1, as amended, brought to set aside allegedly fraudulent conveyances, the grantor is not initially served with process, or an order of publication made as to him, and the case is referred to a commissioner, who hears the evidence bearing on the matters in issue and files his report, the proceedings before the commissioner and the court's decrees bearing thereon, are erroneous as to all interested parties, including the absent defendant, unless such defendant is otherwise brought before the court; but, if thereafter an order of publication is entered as to the absent grantor, who, though not appearing in person, by counsel files an answer denying the material allegations of plaintiff's bill of complaint, and moves for a continuance of a de novo hearing on the merits of the case by the circuit court in open court, such acts by the absent grantor are tantamount to a general appearance.

5. Under Rule X of the Rules of Practice and Procedure for Trial Courts, promulgated by this Court by order entered on April 10, 1936, 'Chancery causes may be heard and determined in open court. In cases so heard, the witnesses shall personally appear before the judge to testify orally, unless their depositions shall be taken out of court for reasons sufficient in actions at law or by order of the judge made for good cause * * *.' 116 W.Va. 1x.

6. A motion for a continuance is always addressed to the sound discretion of the trial court in all the circumstances of the case.

7. In a suit brought to set aside an allegedly fraudulent conveyance between sisters and brothers-in-law, the transaction, though not presumptively fraudulent, is subject to careful and close scrutiny; and such relationship of the parties by consanguinity or affinity does not shift the burden of proof from the plaintiff to the defendant.

8. Under Code, 40-1-1, as amended, the title of a purchaser for valuable consideration from a fraudulent grantor is not affected by the grantor's fraud, unless it appears that the grantee had knowledge of his immediate grantor's fraudulent intent or of the fraud rendering void the title of such grantor.

9. A remark made by an allegedly fraudulent grantee to the effect that a grantor was disposing of all his property to avoid liability under a pending action at law is inadmissible as against other alleged grantees of the grantor who were not present at the time the remark was made.

10. In equity the finding of a trial chancellor will not be disturbed on appeal, unless clearly wrong or against the plain preponderance of the evidence.

Payne, Minor & Ray, Charleston, Walter C. Price, Jr., Charleston, for appellants Clarence L. Frazer and D. R. Frazer.

G. C. Belknap, Sutton, for appellant R. L. Sizemore, et al.

Wolverton & Callaghan, Richwood, for appellee.

RILEY, Judge.

Robert Mullens, administrator of the estate of Cletie Robert Mullens, deceased, instituted this suit in equity against Clarence L. Frazer, Verta B. Frazer, Virginia L. Frazer, Katie S. Frazer, D. R. Frazer, R. L. Sizemore and Mazie V. Sizemore, for the purpose of having set aside and declared void, in so far as the plaintiff's rights and interests are concerned, under Code, 40-1-1, as amended by Acts of the Legislature, Regular Session, 1933, Chapter 31, Section 1, three certain deeds, that is to say, a deed made by Clarence L. Frazer to R. L. Sizemore and Mazie V. Sizemore; a deed from Clarence L. Frazer to Verta B. Frazer for life, with remainder to Virginia L. Frazer and Katie S. Frazer; and a deed from Clarence L. Frazer to D. R. Frazer; and to have the real estate thereby conveyed sold to pay a certain judgment of the plaintiff against Clarence L. Frazer in the amount of six thousand dollars, which was rendered by the Circuit Court of Nicholas County on October 21, 1946. From a decree setting aside all said conveyances as in derogation of Chapter 40, Article 1, Section 1, of the Code, as amended, defendants, D. R. Frazer, Clarence L. Frazer, R. L. Sizemore and Mazie V. Sizemore, prosecute three separate appeals.

On April 18, 1946, the plaintiff herein instituted an action of trespass on the case against Clarence L. Frazer in the Circuit Court of Nicholas County for the sum of ten thousand dollars. A trial thereon at the May term of that court resulted in a hung jury. The case was then tried at the May, 1947, term, which again resulted in a hung jury. On the third trial of the case, which was at the August, 1947, term, at which a demurrer to the evidence was interposed, the jury rendered a conditional verdict for plaintiff in the amount of six thousand dollars, and a judgment of the Circuit Court of Nicholas County was rendered in vacation on October 21, 1947, as appears from the bill of complaint and exhibits, but from an examination of the original record and further from an examination of a certified copy of the judgment order of said Circuit Court of Nicholas County, recently exhibited to the members of this Court, the judgment was entered at a special term thereof.

This record discloses that all of the necessary parties, except Clarence L. Frazer, were served with process. The defendant, D. R. Frazer, a brother of the defendant; Clarence L. Frazer, the defendant; Verta B. Frazer, wife of the defendant, Clarence L. Frazer; and the defendants, R. L. Sizemore and Mazie V. Sizemore, filed their separate answers to the bill of complaint, denying that the conveyances were voluntary and without consideration, or that they were made by Clarence L. Frazer with intent to hinder, delay and defraud the plaintiff, and that any of said defendants had notice of such intent, if it existed. The matter was referred to Claude H. Vencill, a special commissioner in chancery, by a decree entered on May 25, 1948. He was directed: (1) To take, state and report an accounting showing, among other things, the property owned by Clarence L. Frazer at the time of the institution of the suit which resulted in a judgment in favor of plaintiff (2) what disposition of his property, if any, the said Clarence L. Frazer had made during the pendency of the suit; (3) whether he had disposed of any of his property with intent to hinder, delay and defraud plaintiff in the collection of his judgment; and (4) whether any of defendants had notice thereof.

Depositions were taken before the special commissioner, who filed his report, dated September 30, 1948, reporting, among other things, that Clarence L. Frazer intended to defraud the plaintiff, which intent was known to the other defendants at the time of the execution of the deeds to them. The special commissioner also made a finding in regard to a taxi business sold by Clarence L. Frazer to D. R. Frazer, but as to such business evidently the plaintiff has abandoned any claim.

The circuit court overruled the exceptions of the defendants, except Clarence L. Frazer to the report.

In the course of these proceedings, it was found that the defendant, Clarence L. Frazer, had not been served with process, and was not a party to this proceeding. But by order entered on December 27, 1948, plaintiff was awarded an order of publication against Clarence L. Frazer, which publication was completed on January 30, 1949. On February 15, 1949, the defendants, except Clarence L. Frazer, moved the court to set aside the order of reference and suppress the depositions because of lack of jurisdiction of all the necessary parties, Clarence L. Frazer not having been before the court when the order of reference was entered. A hearing was held, and the order filed. Plaintiff then moved the court to hear the evidence in open court, and the circuit court fixed February 18, 1949, as the date for the taking of such evidence. On that date the defendant, Clarence L. Frazer, appeared by counsel, and filed his written and verified answer; and moved the court to set aside the order of reference, and cancel and suppress the depositions as to him, which motion was likewise overruled.

Plaintiff then moved that the evidence be heard in open court, which motion was granted, and then the court proceeded to hear the witnesses for the plaintiff, which consisted only of asking them if they adopted the evidence given by them before the special commissioner; and additional time was allowed by the court until February 25, 1949, within which Clarence L. Frazer could offer proof in his behalf, on which date the defendant, Clarence L. Frazer having failed to cross examine plaintiff's witnesses or offer proof in his behalf, the court entered the final decree complained of, and then the court entered a decree ratifying and confirming the report, and ordering the sale of the three parcels of land, or so much thereof as may be necessary to satisfy the judgment of plaintiff.

The evidence in this case, according to the plaintiff's testimony, is that Clarence L. Frazer, lived at Tioga, where he was postmaster and operated a taxi business; that Frazer owned some real estate, the value of which witness did not know; that D. R. Frazer brought the taxi business from Clarence L....