Scott v. Thomas

• Decision Date: 14 September 1905
• Citation: 104 Va. 330,51 S.E. 829
• Parties: SCOTT. v. THOMAS et al.
• Court: Virginia Supreme Court

104 Va. 330

51 S.E. 829

SCOTT.

v.THOMAS et al.

Supreme Court of Appeals of Virginia.

Sept. 14, 1905.

1. Mortgages—Deed of Trust—Consideration—Effect.

Where a deed of trust, though purporting to have been made in consideration of the beneficiary bank satisfying the lien debts of the grantor and the debts in the bank at that time due and protested against him, further provided that it was made in trust to secure the payment of a negotiable note for the sum of $2,200 payable to the bank, which furnished a valuable consideration for the whole of such note, except a small amount which was indorsed thereon, it was not error for the court in a creditors' suit to refuse to limit the security of the deed to the lien debts satisfied by the bank and its protested notes.

2. Fraudulent Conveyance — Intent of Debtor.

Where, in a suit to set aside a conveyance of a debtor's property for fraud, there was no proof of a real design on the debtor's part to prevent the application of his property to the satisfaction of his debts, but the whole of the property in controversy had been so applied, the conveyance was not fraudulent.

3. Acknowledgment—Disqualification of Notary.

That the notary who took the acknowledgment of the grantor of a deed of trust was the employé of the trustee, and for his services as notary was to receive, in addition to his regular salary, the sum of $1.50 out of the money to be raised under the deed, to be paid him by the trustee, did not disqualify him to take the acknowledgments.

[Ed. Note, —For cases in point, see vol. 1, Cent. Dig. Acknowledgment, §§ 104, 108.]

4. Fraudulent Conveyances—Suit to Set Aside—Relief Awarded.

Where a judgment creditor, suing to set aside a deed of trust on certain property in whole or in part on the ground of fraud, failed on such issue, he was nevertheless entitled to have the land sold and the proceeds applied first to the satisfaction of such deed, and the balance, if any, to the payment of the judgment.

5. Same—Surety of Debt.

Where, in a suit by a judgment creditor to set aside a trust deed for fraud, the debt secured thereby was due when an erroneous decree dismissing the bill was rendered, it was immaterial to such judgment creditor's right to have the property sold in satisfaction of the debt secured and of his judgment that the debt so secured was not due when the bill was filed.

6. Appeal—Record—Construction.

Where an exhibit in the record recited that certain chancery causes were "lately pending" in a certain circuit court, such recital did not show that such causes were still on docket.

Appeal from Circuit Court, Floyd County Bill by W. Scott, trading as S. & W. Scott, against I. O. D. Thomas and others. From a decree in favor of defendants, plaintiff appeals. Affirmed in part, but reversed as to dismissal of bill.

Robt. E. Scott and G. M. Agnew, for appellant.

A. A. Phlegar, Thompkins & Thompkins, M. S. Howard, and V. M. Sowder, for appellees.

KEITH, P. On the 26th day of October. 1901, Thomas and wife conveyed certain land by deed to Brame, trustee. The deed, omitting the description of the property conveyed, is in the following words:

"This deed, made and entered into this the 26th day of October, 1901, between I. O D. Thomas and Mary O. Thomas, his wife, of the first part, and S. R. Brame, trustee, of the second part,

"Witnesseth, that for and in consideration of the People's Bank of Floyd satisfying the lien debts against the said I. O. D. Thomas and the debts in the People's Bank now due and protested against the said I. O. D. Thomas, the parties of the first part grant, sell, and convey unto the said S. R. Brame. trustee, his real estate lying in the county of Floyd. * * * This deed is made in trust to secure the payment of one negotiable note for the sum of twenty-two hundred dollars ($2,200) payable to the People's Bank of Floyd County, said note dated on the 26th day of October, 1901, and payable at People's Bank of Floyd County, four months after date of said note, said note made by the said I. O. D. Thomas. And this deed is given to secure each renewal of said note or part thereof that may be made by the said Thomas and accepted by the said bank."

This deed was on the 2Sth day of October, 1901, at 10 minutes past 10 o'clock a. m., duly admitted to record in the clerk's office of the county court of Floyd County. On the same day, at 20 minutes past 12 o'clock p. m., Thomas confessed a judgment in favor of W. Scott for the sum of $734.93. On the 28th day of October, 1901, "in consideration of the sum of $475, " paid by S. R. Brame on the debts of Thomas, Thomas sold to Brame certain personal property, horses, cattle, sheep, and a wagon, the bill of sale for which was recorded on the same day in the clerk's office of Floyd county. It appears, also, that an execution, dated the 28th day of October, 1901, upon the judgment confessed by Thomas to Scott, was levied on the 29th day of October upon the property sold by Thomas to Brame, the bill of sale for which has just been adverted to. The levy of this execution was released by order of the plaintiff on November 14, 1901.

On November 15, 1901, Scott instituted a suit in equity against Thomas, Brame, as trustee and in his own right, and the People's Bank of Floyd. In his bill he insists that the deed of trust from Thomas to Brame was made with intent to defraud his creditors and that it undertook to secure a greater amount than was justly due by Thomas, and prays that It may be declared a lien only for the amount actually advanced by the People's Bank of Floyd to pay the lien debts of Thomas and such other debts due to the People's Bank as were due and protested at the date of the deed of trust, and that the bank be compelled to apply the proceeds of the two notes given to Thomas by Ira M. Compton and in the possession of the bank, amounting to $205, to the lien debts which it holds against Thomas. The bill further sets out the sale of the personal...