New South Bldg. & Loan Ass'n v. Reed
| Decision Date | 15 September 1898 |
| Citation | 96 Va. 345,31 S.E. 514 |
| Court | Virginia Supreme Court |
| Parties | NEW SOUTH BUILDING & LOAN ASS'N. v. REED et al. |
Judgments—Mortgages—Priority—Fraudulent Conveyances—Consideration—Subsequent Creditors—Husband and Wife.
1. Under Code, § 3567, providing that a judgment is a lien as of the first day of the term at which it was rendered, a judgment rendered after the recordation of a deed of trust, but at a term which commenced prior to such recordation, is prior to the deed.
2. Where a debtor, at the time of purchasing lands taken in the name of his wife, had ample property to pay his debts, and there is no evidence that the conveyance was intended to prejudice subsequent creditors, it is valid as to them, under Code, § 2459, providing that voluntary conveyances shall not on that account merely be void as to subsequent creditors.
3. A husband cannot divert his estate to the payment of purchase money due from his wife on her separate estate, or to the cost of improving it, when by so doing he devests himself of means to pay debts already contracted.
4. A contention by a wife, in a contest with her husband's creditors, that sums expended by the husband in paying the balance of purchase money on her separate estate, and in improving it, were from her separate estate, because of proceeds of her estate passing into his hands some several years previous, will not prevail, where there is no evidence that the transaction had been intended as a loan, or that husband and wife had intended to occupy the relation of debtor and creditor in respect thereto.
Appeal from hustings court of Roanoke.
Bill by the New South Building & Loan Association against D. V. Reed and others to determine the priority of certain liens. Prom a decree in favor of defendants, complainant appeals. Reversed in part.
C. A. McHugh and John M. Hart, for appellant.
Scott & Staples, Watts, Robertson & Robertson, and Lockett & Cosby, for appellees.
The court is of opinion that the two judgments asserted in the original bill in this cause, one in favor of the Enterprise Carriage Manufacturing Company, and the other in favor of the Ohio Spiral-Spring Buggy Company, constitute liens upon the real estate of D. V. Reed prior in dignity to the deed of trust upon said real estate in favor of the appellant building association dated and recorded April 17, 1893. Both of these judgments were rendered at the April term, 1893, of the circuit court for the city of Roanoke, which term began April 10, 1893. The judgments were rendered after the recordation of the deed of trust, but they operate as a lien upon the real estate of the judgment debtor from the first day of the term of the court at which they were rendered. This, we have seen, was before the deed of trust was recorded, and hence judgments rendered at that term have priority over the deed of trust recorded during the term. Code, § 3567; Hockman v. Hockman, 93 Va. 455, 25 S. E. 534.
The court is further of opinion that the appellant building association is not entitled to be subrogated to the liens existing upon the real estate of D. V. Reed at the time its loan was made, and upon which said loan was secured. This claim for subrogation is for affirmative relief. It was never made in the court below, but is suggested for the first time in the closing brief of counsel for appellant filed a few days before the case was called for argument in this court. The cause was not conducted in the court below with reference to the contention now made as a means of relief, and, even if it was proper to allow parties to be surprised by a new case made here for the first time, the evidence furnishes no basis for the relief asked.
The court is further of opinion that the deed of April 15, 1891, from George A. Baker and wife, conveying to Mrs. M. O. Reed a certain lot of land in the city of Roanoke on...
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...they come in conflict with the claims of creditors. Holloway v. Holloway, 103 Mo. 274; Benne v. Schnecko, 100 Mo. 250; New South B. & L. Ass'n Co. v. Reed, 31 S.E. 514. (4) Payments by a debtor, of premiums upon a policy of life insurance upon his own life for the benefit of his wife, or fo......
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Moody v. Beggs
... ... Grabill v. Moyer, 45 Pa. 530; New South etc ... Assn. v. Reed, 96 Va. 345, 70 Am. St. 858, 31 ... submit any proof whatever as to whether there was a loan made ... to her husband, there being no written evidence ... ...
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Hinton v. Saul
...wife as shown by the cases cited in the text, but the principle is not applicable here. Dickinson v. Patton, 65 S.E. 529; New South Bldg. Assn. v. Reed, 31 S.E. 514. court erred in subjecting all personal property of Mrs. Hinton, except forty head of cattle, to the payment of her husband's ......
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Morrisette v. Cook & Bernheimer Co
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