Saunders v. Parrish

• Decision Date: 23 January 1890
• Parties: Saunders v. Parrish et al.
• Court: Virginia Supreme Court

10 S.E. 748

(86 Va. 592)

Saunders

v.Parrish et al.

Supreme Court of Appeals of Virginia.

Jan. 23, 1890.

Fraudulent Conveyance.

At the time of the dissolution of the partnership existing between P. and K., by the terms of which K. agreed to assume all firm liabilities and pay P. a certain amount, their firm note was held by plaintiff, to whom P. wrote, informing him of the terms of the dissolution, and urging him to push K. for a settlement. Instead of doing so, plaintiff continued to sell to K. After the dissolution P. executed his bond to plaintiff for an individual indebtedness, and offered to sell him certain land in payment of this and the firm debt, which offer was refused. Thereafter P., being about to remove from the state, conveyed the land to his brother in payment of a debt equal to the value of the property. Held, that the facts did not show fraud for which the conveyance would be set aside in favor of plaintiff.

Appeal from circuit court, Louisa county.

Alex Coke and E. L. Gordon, for appellant. Meredith & Cocke, for appellees.

Hinton, J. This suit was brought to have a certain deed, made by one H. J. Parrish to his brother, T. J. Parrish, on the 17th of March, 1883, for the stated consideration of $4,000, declared fraudulent and void, and to subject three of the four parcels of land conveyed by said deed to the payment of the debts due to the plaintiff. The bill was filed at August rules, 1884, of the circuit court of Louisa county, and waives answers from the defendants. Nevertheless both of the brothers Parrish promptly answered under oath, explicitly denying the various allegations of fraud, and subsequently appeared and were examined as witnesses in the case. The circuit court determined by its decree that there was no fraud in the case, and this court, after a very careful examination of the record, has reached the same conclusion. Thatfrau4 must not only be charged, but proved, is an observation that has long since become axiomatic; and, while it is not necessary, nor even always possible, to establish the fraud by direct and positive evidence, and therefore circumstantial is not only sufficient, but in many and perhaps the majority of cases the only proof that can be adduced, yet the evidence in both classes of cases must be so strong and clear as to satisfy the conscience of the chancellor that the conveyance was not made in good faith before the court can so declare. Moore v. Ullman, 80 Va.311; Armstrong v. Lachman, 84 Va. 726, 6 S. E. Hep. 129; Bowden v. Johnson, 107 U. S. 251, 2 Sup. Ct. Rep. 246; Jones v. Abraham, 75 Va. 466; Rea v. Missouri, 17 Wall. 543; Wait, Fraud. Conv. §§ 5-8, 224, 382. Now in this case there is no such measure of proof. The plain and simple facts of the case seem to be as follows: In June, 1880, Humphrey J. Parrish and J. H. Kennedy dissolved a partnership which had theretofore existed between them, upon an agreement that Kennedy was to pay Parrish $300, take the assets, and pay the liabilities. At that time the firm owed the appellant, E. A. Saunders, $451.16, for which Parrish...