Reynolds's Adm'rs v. Heirs

• Citation: 37 W.Va. 3
• Court: Supreme Court of West Virginia
• Decision Date: 19 November 1892
• Parties: Reynolds's Adm'rs v. Gawthrop's Heirs.

37 W.Va. 3

Reynolds's Adm'rs

v.Gawthrop's Heirs.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 1892.

Decided November 19, 1892.

1. Limitations of Actions Fraudulent Conveyances.

Under section 14, c. 104, of the Code, the period of five years limiting a suit to avoid a voluntary conveyance begins to run from the making of the conveyance.

2. Limitations of Actions.

Where a person by any indirect ways or means obstructs the prosecution of a right, the time during which such obstruction continues shall not be computed in the limitation periods prescribed in Code, c. 104.

3. Limitations of Actions Fraudulent Conveyances.

If a voluntary deed be made for lands, and its existence purposely concealed by the parties, and it is withheld from recordation for nine years with intent to prevent the grantor's creditors from knowing of its existence, and the creditors being ignorant of it are thereby lulled into a feeling of security, and by reason thereof do not sue to avoid it until after five years from the date of the deed, the time during which the creditors are thus obstructed is not to be computed as a part of the term limiting a suit to annul such deed.

4. Fraudulent Conveyances Evidence.

While the burden of proving a deed fraudulent in fact as to creditors is upon the creditors, positive evidence of fraudulent intent is not required, but it may be deduced from the circumstances of the transaction and the relation and situation of the parties to it and to each other. Circumstantial evidence, if adequate to satisfy the court of such fraudulent intent, is sufficient and often the only evidence attainable.

5. Fraudulent Conveyances Notice.

Where the circumstances connected with a conveyance fraudulent as to the grantor plainly establish the complicity of the grantee in the fraudulent intent, it is not necessary to show by direct and positive proof notice to the grantee of such intent.

6. Fraudulent Conveyances Bona Fides Burden of Proof.

A conveyance of a valuable tract of land by father to son, the father being largely indebted, it being all the land owned by the father, and be having left only some personalty hardly, if at all, adequate to satisfy his debts, induces a strong suspicion of fraud, and renders the conveyance prima facie fraudulent, and calls upon the grantee to furnish clear proof of the bona fides of the act.

M. II. Bent for appellant cited 22 W. Va. 856; 82 W. Va. 507; 38 W. Va 449.

F. Woods and B. F Martin for appellees.

I. The proper order in which claims upon lands should, be charged. 27 Graft, 479; 27 W. Va. 668; 31 W. Va. 156;

30 W. Va. 443.

II A party claiming under a deed is bound by the general character of the consideration stated,-in the deed,. 70 Md. 272; 41 Md. 402; Waite Fr. Conv. § 221; Bump. Fraud. Conv. 598; 1 Green 1. Ev. § 275; 64 Md. 583; 1 II. & J. 175.

III. Contract to support, grantor not in writing not enforceable. 3 Par. Cont. *21, *22; 11 Graft, 636; 27 W. Va. 258; 23 W. Va 725; Bish. Cont. § 1259; 1 Porn. Eq. §§ 397, 400, 401; 2 Pom. Eq. § 899; Bump. Fraud. Conv. 218; 2 Ilerm. Estop. § 599; 10 W. Va. 143.

IV. Fraud is usually proved by circumstances. 23 W. Va. 644; 29 W, Va. 451; Wait Fraud. Conv. 566, 572, § 280; 35 W. Va. 719; 22 W. Va. 585; 64 Md. 296.

V. Transactions between father and son, require less proof to show fraud than the same between strangers. 30 W. Va. 555; 23 W. Va. 639.

VI. Transfer of all a man's goods, pendente lite, mark of fraud. Wait Fraud. Conv." § 233; Id. § 231; Bump Fraud. Conv. 37; Wait Fraud. Conv. § 326.

VII.-Concurrent possession of grantor and grantee badge of fraud. 22 W. Va. 585; 34 W. Va. 105. '

VIII. Possession of vendor all that, need be shown in the first instance. Bump Fraud. Conv. 64; Wait Fraud. Conv. § 245; 34 W. Va. 105.

IX. Concealment of deed significant of fraud,. Wait Fraud. Conv. § 285; Bump Fraud. Conv. 39.

K. Not error to hear the causes together. 10 W. Va. 645. XL -Exceptions must point out the error complained of with reasonable certainty. 24 W. Va 540; 14 W. Va. 581. XII. Parts not excepted to are admitted to be correct. 19 W. Va. 459; 21 W. Va 262.

XIII. Adults not excepting are deemed to acquiesce. 24 W. Va. 524; 27 W. va. 227; 22 W. Va. 581; 24 W. Va. 525; 26 W. Va. 563.

XIV. To final decree bill of review is proper. To an interlocutory decree bill in the 'nature of a bill of rente id and petition for rehearing is proper. -10 W. Va. 298; 24 W. Va. 689; 22 W. Va. 404; 26 W. Va. 569; 25 W. Va. 208.

XV. Weight of evidence as to value of property. 21 W. Va. 234.

XVI. Porty not aggrieved, can not appeal. 78 Va. 720; 1 Hart. Ch'y Pr. 158; 1 II. & M. 404.

XVII. Title of purchaser not affected by reversal of order of sale. Code (1891) c. 132, s. 8; 10 W. Va. 143; 77 Va. 473, 475; 66 Md. 586; 71 Md. 861.

XVIII Sale can not be set aside merely for errors in decree ordering it. 19 W. Va. 368; 1 Wall. 627.

XIX. Defects in proceedings of commissioner of sale nay be rural by the court 19 Wis. 680; 68 111. 58.

Brannon, Judge:

The administrators of C. E. Reynolds and others, creditors of Allen B. Gawthrop, brought a number of separate suits against him and others to avoid certain deeds from him to his sons for lands in Taylor county; one dated 11th May, 1874, to Perry Gawthrop; one dated 22d February, 1875, to Evan M. Gawthrop; and two dated 1st May, 1876, and 25th June, 1885, to Thomas A. Gawthrop. The court held void the two deeds to Thomas A. Gawthrop and.subjected the lands thereby conveyed to various debts of Allen B. Gawthrop; and Thomas A. Gawthrop appeals.

When Allen B. Gawthrop made to his son Thomas A. Gawthrop the deed of 1st May, 1876, he was indebted according to his own statement at least one thousand two hundred dollars to one thousand four hundred dollars, exelusive of interest, and exclusive of a note of one thousand four hundred and fifty dollars to Christian Smith, with interest from 1st December, 1872; but from his specification of his indebtedness to divers persons, and payment of" three hundred and seventy five dollars made by him in November, 1876, on another debt to Smith, his indebtedness was considerably larger than the total estimated by him.

On the 6th of February, 1875, an action was brought against Joshua E. Gawthrop and Allen B. Gawthrop upon said note of one thousand four hundred and fifty dollars executed by them to Christian Smith, which was stubbornly contested by Allen B. Gawthrop. Two trials took place, involving large costs and expenses, which, after pending until September 15, 1885, resulted in a judgment by compromise of seven hundred dollars.

So it is, that, when Allen B. Gawthropjnade the deed to his son Thomas, he was seriously indebted by reason of undisputed debts and in danger of a large recovery in the Smith suit; and, while he had been the owner of a tract of four hundred and fifty acres of land, worth from fifteen thousand dollars to twenty thousand dollars he had conveyed to Perry Gawthrop one hundred and forty six acres, ami to Evan M. Gawthrop one hundred and fifty three acres, retaining one hundred and fifty acres, which was all the land he owned, and by its conveyance to Thomas A. Gawthrop he stripped himself of all the land to which his creditors could look for satisfaction. About 1880 he passed to his son Thomas A Gawthrop all his personalty, worth, at least, three hundred dollars or four hundred dollars. He afterwards inherited from his sisters one ninth of two thirds of a tract of one hundred and sixteen acres, and by deed dated 25th June, 1885, he conveyed this property to said Thomas A. Gawthrop. At the time of these transfers the Smith suit was pending. Thomas A. Gawthrop knew of this indebtedness and of the suit.

We hold these two conveyances from Allen B. to Thomas A. Gawthrop void as to the creditors assailing them.

The deed of May 1, 1876, recites a, consideration of three hundred dollars and natural love and affection. The tract contained in fact two hundred and four and three forth acres, worth eight thousand five hundred dollars. It was voluntary on its face, except only as to the money consideration of three hundred dollars, and Allen B. Gawthrop's debts charged against it by the decree do not amount to the value of the land less the three hundred dollars.

But it is claimed that, viewed as a voluntary conveyance, the land can not be made liable to the debts, because the deed is dated May 1, 1876, and suit to avoid it was brought to October rules, 1885, and it is barred by the period of five years fixed by section 14, c. 101, Code, as the term for a suit to avoid a voluntary conveyance.

This statute commences to run from the making of the deed, which is prima facie on its date, Hunter v. Hunter, 10 W. Va. 321. In this instance the deed wyas not put on record till the 20th of February, 1885,-and the bills charge that the creditors remained utterly ignorant that such a deed had been made, trusting in the continued responsibility of their debtor, until awakened to the fact of the conveyance by its recordation, and that the withholding it from record was intended to obstruct, hinder, and delay the creditors in the collection of their debts, and thus defraud them.

Now, it would seem to be hard and unjust that a party should hideaway a voluntary conveyance, withhold it from the public record, where people usually and reliably obtain information of transfers of realty, his creditors all the while ignorant of such conveyance, and thus effectually secrete it from his creditors until the period of the statute had run, and then plead the statute, and have the benefit of the time he so kept it from the record. Section 18, c. 104, of the Code, provides that, where a party shall by any "indirect ways or means obstruct the prosecution" of a right, the time that such obstruction continues shall not be computed. Vanbibber v. Beirne, 6 W. Va. 168; 1 Rob. Pr. (New) 634.

Here the debtor lived for years neighbor to his creditors, they believing him to be the owner of the...