Rinehart v. Hall., (No. 8306)
| Decision Date | 28 April 1936 |
| Docket Number | (No. 8306) |
| Citation | 117 W.Va. 383 |
| Court | West Virginia Supreme Court |
| Parties | E. A. Rinehart, Receiver, v. J. Lee Hall et al. |
1. Appeal and Error
It is reversible error to decree the sale of land in satisfaction of debt without first adjudicating the amounts and priorities of the claims against it that are properly before the court.
2. Appeal and Error
Cross-assignments of error, based upon the record before the appellate court, may be made to any part of the decree appealed from.
3. Fraudulent Conveyances
Where a wife withholds from record deeds effecting a transfer of the real estate of the husband to her, under circumstances in which she should have known that credit was being extended to the husband on the faith of the apparent title which stood of record in his name, she will be estopped to assert her ownership as against creditors of the husband whose debts were incurred on the faith of his apparent title.
Appeal from Circuit Court, Marion County.
Suit by E. A. Rinehart, receiver of the Farmers & Merchants Bank of Fairview, against J. Lee Hall and wife, wherein J. H. Yost filed an intervening petition. From adverse orders, petitioner appeals.
Reversed in part; affirmed in part; remanded.
Frank C. Haymond, Mar-tin & Seibert and Harrison & Harrison, for appellant.
Rollo J. Conley and Clay D. Amos, for appellee Hattie M. Hall.
H. H. Rose, for E. A. Rinehart, receiver.
E. A. Rinehart, receiver of the Farmers & Merchants Bank of Fairview, brought this suit in the Circuit Court of Marion County against J. Lee Hall and Hattie M. Hall for the purpose of setting aside as voluntary and fraudulent a certain deed dated October 17, 1919, from J. Lee Hall and Hattie M. Hall, his wife, to T. Wilbur Hennen and a certain other deed of even date from T. Wilbur Hennen and Nellie A. Hennen, his wife, to Hattie M. Hall, each conveying residential property in the City of Fairmont occupied by the defendants, in so far as a certain indebtedness of J. Lee Hall to the Merchants Bank of Fairview, amounting in the aggregate to $3,000.00, with interest, was concerned, and to subject the land conveyed to the payment of that debt. J. Lee Hall and Hattie M. Hall filed separate answers and proof was taken. On June 27, 1935, the court decreed that the conveyances under attack were fraudulent as to the plaintiff's debt, set them aside, and ordered that the real estate conveyed be sold in satisfaction of the plaintiff's claim.
On June 25, 1935, the petitioner and appellant, J. H. Yost, cashier, filed his petition alleging that on the 18th day of September, 1934, he had recovered a judgment against the defendant, J. Lee Hall, and one H. Delmar Robinson in the District Court of the United States for the Northern District of West Virginia in the sum of $4,898.35, with interest and costs, and that an abstract thereof had been filed in the office of the clerk of the county court of Marion County, West Virginia, on the 24th day of September, 1934. The petition alleges that no part of the judgment has been paid, that the conveyances of real estate set out in the bill of complaint are fraudulent, voluntary and void in so far as the debt of the petitioner is concerned, adopts the allegations of the bill of complaint, in so far as they are applicable, as the allegations of the petition, and prays the right to intervene and be made a party plaintiff to the suit in order that the claim set up by the petition may be adjudicated, and the conveyances under attack held to be voluntary, fraudulent and void as to the petitioner's judgment. On the day the decree of sale was entered, June 27, 1935, the court refused a motion to continue the case without the entry of a decree of sale for two days in order that further appearance on behalf of petitioner could be made. On June 29, 1935, the motion of petitioner to vacate the decree of sale entered June 27, 1935, and that he be made a party plaintiff, was overruled by the court. At the same time, the motion of petitioner that process be awarded on his petition and a hearing be had thereon was taken under advisement. On July 6, 1935, the motion for process was granted and the motion to vacate the final decree so that the claim set forth in the petition could be adjudicated was overruled. The petitioner, J. H. Yost, cashier, prosecutes this appeal to the orders of June 27th, June 29th and July 6, 1935, contending that it was error for the trial court to decree a sale of the property without first adjudicating the claim set up in the petition.
The defendant, Hattie M. Hall, assigns cross-error on the ground that the record shows that there was insufficient proof upon which to decree that the deeds under attack were voluntary, fraudulent and void as to her interest in the property conveyed, and on the further ground that in any event, she should have been decreed an equitable lien in the sum of approximately $6,000.00 against the property to protect her in the value of certain improvements that she made upon the property prior to its conveyance to her, which were, she contends, the consideration for the conveyance.
We are of the opinion that the principles enunciated in Murdoch, Admr. v. Welles, 9 W. Va. 552, and in Dent v. Pickens, 50 W. Va. 382, 40 S. E. 572, as reaffirmed in the recent case of Wilt v. Shaffer, not yet reported, (117 W. Va. 291, 185 S. E. 237), govern the questions arising upon the petition of Yost, cashier. The petition of Yost had been received and filed two days before the decree of sale was entered. His claim was before the court. It is true that he had not, by order, actually been made a party plaintiff. Neither had there been process upon his petition. His judgment had been docketed in the county clerk's office of Marion County before this suit was brought. Under these circumstances, his claim was before the court in such manner as to require final disposition and adjudication in the case. This suit was brought on behalf of the plaintiff and on behalf of all other creditors of J. Lee Hall who would come into the case and contribute their part of the cost. Under a similar state of facts, we held in Wilt v. Shaffer, that it was error to decree sale of land without adjudicating the petitioner's claim. It is true that in the Wilt case, the court had actually adjudicated that the petitioner there was entitled to share in the proceeds of the sale, and that the conveyances under attack were fraudulent as to the petitioner's claim. The claim itself had not been actually adjudicated, nor had its priority been fixed.
In the case at bar, the petition alleges that the conveyances attacked by the bill of complaint are voluntary, fraudulent and void as to petitioner's claim, and, in so far as they are applicable, adopts the averments of the bill of complaint. It cannot be doubted that in a suit of this nature, this was sufficient to place the claim of the petitioner properly before the court. It is argued that the case had been submitted for decision and had actually been decided by the court upon the basis of the bill, answer and proof before the petition was presented, and that a decree in conformity to the court's holding had actually been prepared before that time. In the absence of a showing of laches against the petitioner's claim, which, we believe, does not exist in this record, these circumstances, while perhaps resulting in serious inconvenience and in some delay, are not sufficient to furnish ground upon which to base an exception to the general rule that the amounts and priorities of the claims properly before the court must be adjudicated before land can be decreed to be sold to satisfy indebtedness of the owner.
On the cross-assignment of error urged by the defendant, Hattie M. Hall, the appellant contends that since its appeal is restricted to the decrees of June 27th, June 29th and July 6, 1935, that the cross-assignments of error are necessarily so restricted, and that to permit the defendant below to cross-assign error beyond those decrees would be equivalent to enlarging this appeal beyond the scope of the petition. To sustain his position in this regard, the petitioner cites Allen & Co. v. Maxwell, 56 W. Va. 227, 49 S. E. 242; Sulzberger Co. v. Fairmont Packing Co., 86 W. Va. 361, 103 S. E. 121; Vaughan v. Vaughan, 101 W. Va. 561, 133 S. E. 158; and certain other cases bearing only collaterally upon the point involved.
The cases cited by petitioner are ones in which either the appeal or the writ of error before the court, or the record as made up on review, were restricted to specific points. The petitioner contends that the petition for an appeal was restricted to the matters arising upon the intervening petition in the case at bar, and it may have been the purpose to restrict the appeal before us to the questions arising upon the refusal of the trial court to adjudicate petitioner's claim. However, in the light of the actions of the trial chancellor that are complained of. and in the light of the language used in the petition for the appeal, we are of the opinion that with respect to the decree of June 27, 1935, this appeal may not be treated as restricted and confined only to the matters arising upon the petition filed by petitioner in the court below, and to such cross-error as may be assigned upon the trial court's action concerning that petition. The assignments of error and the prayer of the petition for an appeal are quoted:
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