Mylius v. Smith
| Decision Date | 11 April 1903 |
| Citation | 44 S.E. 542,53 W.Va. 173 |
| Parties | MYLIUS v. SMITH. |
| Court | West Virginia Supreme Court |
Submitted September 8, 1902.
Syllabus by the Court.
1. An order in a chancery cause entered "by consent of all the parties represented by counsel, the pleading and proofs are closed, and this cause is submitted for a final adjudication," is binding upon all the parties who had at the time of the entry of the order, appeared in the cause.
2. A consent decree can only bind the consenting parties.
3. Where there is a subsisting lien by deed of trust upon a piece of real estate, the property of a wife, and subsequently the husband, with his own means, makes valuable improvements thereon, in fraud of the rights of his creditor who files a bill, and succeeds in charging the value of the improvements so made thereon, on account of his debt, he has a lien on said improvements to the amount of the value thereof, subject to the deed of trust. Held error to require the deed of trust debt to be paid out of the amount decreed to plaintiff against the improvements.
Appeal from Circuit Court, Upshur County; W. C. Bennett, Judge.
Bill by Charles E. Mylius against J. L. Smith. Decree for defendant and plaintiff appeals. Modified.
S. V Woods, for appellant.
Young & McWhorter, C. C. Higginbotham, and G. M. Fleming, for appellee.
MCWHORTER P.
Charles E. Mylius, who held a judgment against James L. Smith and Floyd G. Smith, rendered in the circuit court of Upshur county October 15, 1887, for $2,200, filed his bill in the said circuit court in November, 1895, against James L. Smith and May Smith, his wife, Floyd G. Smith, John L. Smith, William Post, Perry L. Rohrbaugh, and O. L. Rohrbaugh, for the purpose of charging certain parcels of real estate held by said May Smith, by conveyances, as the property of said James L. Smith, and holding the improvements made on certain other lots of May Smith by James L. Smith, and for setting aside the deeds for said first-mentioned lots as fraudulent, as to plaintiff's judgment, which conveyed the same to said May Smith, and for a discovery as to Floyd G. Smith as to the title of three parcels of real estate which had been conveyed to his wife in 1882, and which had stood assessed in his name from the year 1882 until 1895, and that the equitable ownership of the same might be fixed in him, and declared liable to the plaintiff's judgment, and for general relief.
By deed dated September 15, 1876, John L. Smith and wife conveyed to May Smith, wife of James L. Smith, in consideration of $1,000, "$500.00 of which said John L. Smith remits in consequence of relationship which the said May Smith has to him, which $500 is to be deducted out of James L. Smith's portion of the father's [John L. Smith's] estate and the remaining $500 is to be paid in five annual installments from this date, to be paid in saddles at cost valuation, for which deferred payments the said May Smith has this day executed her five notes to John L. Smith and upon further consideration that said May Smith shall pay annually to said John L. Smith the sum of twenty-five dollars so long as he may live." Said conveyance was with general warranty to said May Smith for and during her natural life, remainder in fee to the children to be begotten by her husband, James L. Smith, and, in default of any children, then in fee to the heirs, equally, of John L. Smith; reserving a vendor's lien to secure the payment of the $500 so to be paid in saddles, and also the payment of the said annuity. Said property so conveyed was a lot in Buckhannon, on Locust street, containing about one-half acre. By deed dated the 24th of November, 1877, John R. Blair, administrator with the will annexed of I. N. Bennett, in consideration of $200, of which $66.67 was paid in hand, the residue in three equal annual payments, for which a vendor's lien was retained, conveyed to said May Smith a certain house and lot on the north side of Main street in the town of Buckhannon. By deed dated the 28th of July, 1891, Joseph C. Smith conveyed to said May Smith, lot No. 44 on Cleveland avenue in North Buckhannon, in consideration of $100. By deed dated the 9th of August, 1892, Leonard Lance and wife, in consideration of $100 paid, conveyed to said May Smith lot No. 38 on Thurmond avenue in North Buckhannon. By deed dated April 7, 1892, Joseph C. Smith, in consideration of $200 paid, conveyed to said May Smith lots Nos. 58 and 60 on Harrison avenue, North Buckhannon; and by deed dated the 27th of January, 1893, William Post and wife, in consideration of the sum of $1,700, of which $700 was paid, and $500 to be paid on January 27, 1894, and a like sum on the 27th of January, 1895, for which deferred payments May Smith made her two promissory notes, for the payment of which a vendor's lien was retained, conveyed, with general warranty, to said May Smith, the one undivided one-half interest of a lot therein described, on Main street in the town of Buckhannon; and by deed dated the 24th of February, 1894, Lulu Maud Williams and husband conveyed to said May Smith, in consideration of $29, lot No. 31 in the town of Hampton.
It is alleged in the bill that the said May Smith did not execute her notes as recited in the said first deed, and did not pay the said $500 in saddles, or in any other manner, to John L. Smith, but that the same had been paid to said John L. Smith, in saddles or money belonging to James L. Smith, since the year 1882, and that the said annuity had likewise been paid by him; that May Smith had never had the means to pay said $500 or the $25, except with the money and means derived from her said husband, and that said conveyance of September 15, 1876, was made with intent to hinder, delay, and defraud creditors of John L. Smith and James L. Smith, of which intent May Smith had notice, and that, since plaintiff's cause of action had accrued, said James L. Smith, out of his own means, and with the intent to hinder, delay, and defraud his creditors, made valuable improvements on said lot, worth not less than $500; and that May Smith had notice of such fraudulent intent with which such improvements were made. The bill further alleges that the lot purchased from Blair, administrator, was purchased with the means of James L. Smith, and that he was the equitable owner thereof; that May Smith never had the means with which to buy or pay for the same, and that said lot was kept in her name for the fraudulent purpose of placing it beyond the reach of her husband's creditor's, of which purpose she had notice; and alleges that the lien retained in favor of Post on the lot conveyed by him had been fully paid off, and that the lots conveyed to May Smith by Joseph C. Smith, Williams, and Lance were purchased by her husband in her name with intent to hinder, delay, and defraud his creditors, of which fraudulent intent May Smith had notice, and that all the purchase money for said several lots was derived by May Smith directly or indirectly from her husband, and that the same was his money, and the produce of his labor, skill, and economy, and that no part thereof was the money of May Smith, and that she was holding the title thereto for the fraudulent purpose of concealing the true ownership thereof; that James L. Smith, after plaintiff's cause of action accrued, carried on his saddlery business in the name of May Smith; that, since the purchase of the lot from William Post, May Smith has erected a costly and valuable two-story business house, costing not less than $2,000, the first floor occupied by a stock of general groceries by said May Smith in her name, with a stock of not less than $500, which grocery business was under the control of James L. Smith, pretending to be the agent in respect thereto of May Smith; that all the improvements made on the Post lot were made with the means of James L. Smith, and the stock of merchandise in the building was purchased with his means, and with the intent to hinder, delay, and defraud the creditors of her husband, of which fraudulent intent she had notice; that to the extent the means and the labor of James L. Smith had gone into the house and lot on Locust street, with the purchase or the improvement thereof, since plaintiff's cause of action accrued, the same was liable, in the hands of May Smith, to be charged to that extent with the payment of plaintiff's claim, and that to the extent that the said lot on Main street conveyed to May Smith on the 24th of November, 1887, was paid for by means or earnings of her husband after plaintiff's cause of action accrued, it was liable to be charged as a claim due to the plaintiff; that all of the lots, and each of them, conveyed to her by Joseph C. Smith, Lance, Williams, and Post, were liable to be charged in her hands for the debt due the plaintiff; that all of the said improvements upon said Post lot were liable to be charged, to the extent of the value thereof, in the hands of May Smith, for the debt of plaintiff; that all of the said stock of merchandise was likewise liable for plaintiff's debt, upon which debt an execution had been outstanding in the hands of an officer of Upshur county since the ______ day of September, 1895; that James L. Smith and Floyd G. Smith were insolvent, and had so continued since the plaintiff's judgment was recovered against them.
At December rules, 1895, the defendants James L. Smith, May Smith, Floyd G. Smith, and John L. Smith each filed an answer to said bill, denying all fraud and fraudulent intent, or notice of any fraud or such intent. James L. Smith denied the allegations of the bill that he had for the past 13 years carried on in Buckhannon a thriving and prosperous business in the name of May Smith, as a saddler and large dealer in saddle...
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