Sleeth. v. Taylor.
| Decision Date | 19 March 1918 |
| Parties | W. H. Sleeth et al. v. S. J. Taylor et al. |
| Court | West Virginia Supreme Court |
1. Appeal and Error Review Adjudication of Bower.
A decree tacitly denying a right of dower in land, set up and claimed by an answer, amounts to an adjudication against such right and confers right of review by an appeal. (p. 143).
:. Dower Disallowance Equities.
Disallowance of the right of dower, in a decree, cannot be justified on the ground of alleged equities against the widow, that had become irremediable by lapse of time, at the date of the entry of the decree. (p. 143).
3. Avoidance oe Fraudulent Conveyances Limitations.
A gift, conveyance, assignment, transfer or charge, not on a consideration deemed valuable in law, cannot be avoided in whole or in part, for that cause only, unless attacked within five years from the date thereof. (p. 145).
If, in such case, there is fraudulent intent toward creditors, on the part of the donor, such gift, conveyance, assignment, transfer or charge cannot be avoided after such period of five years, without an allegation and proof of knowledge of such fraudulent purpose and participation therein, on the part of the donee, (p. 145).
5. Dower Gross Sum in Lieu of Dower Statute.
As against a grantee of land in a deed executed by her husband alone, a wife, after the death of the husband, is entitled to dower in kind in the land so conveyed, if assignment thereof is practicable, unless the grantee elects to pay her interest or a gross sum in lieu of dower, as provided by sec. 12, ch. 65, Code, (p. 145).
6. Same Husband's Purchase Money Lien "Redemption from Lien
Gross Sum in Lieu of Dower.
In the case of a purchase money lien on land owned by her husband in his lifetime, a widow is entitled to dower in kind in the land, if it will sell subject to her dower for a sufficient sum to pay such lien debt, or if part thereof sold free of her dower, leaving a sufficient portion to sustain the assignment of dower, will sell for such sum, or if sale of part of it free of dower and the residue, subject to full dower, will produce such sum. She may also obtain such dower by redeeming the land from the lien. If the land will sell for more than enough to pay the debt and the circumstances are such as preclude assignment of dower in kind, she is entitled to a gross sum equal to her dower in the surplus, payable out of the proceeds of the sale of the whole of the land free of dower. (p. 146).
There is no right of dower in real estate purchased with partnership funds, used as partnership property and encumbered beyond its value with partnership debts. (p. 148).
8.Subrogation Lien Fraudulent Grantee of Land.
A fraudulent grantee of land has right of subrogation to the benefit of a lien existing on the land at the date of the conveyance and subsequently discharged by him. (p. 146).
9.Same.
If such lien covers an entire tract of land only an undivided portion of which is conveyed to such grantee, his right of subrogation extends only to a part of the debt paid by him, determinable by the relation of the interest conveyed to the entire tract, (p. 146).
10. Fraudulent Conveyances Bights of Fraudulent Grantee Lien. A fraudulent giantee is not entitled, as against creditors of the grantor or a doweress, to a lien for the amount of an antecedent debt constituting part of the consideration, or a debt of the grantor to a third person, assumed by him as part of the consideration, (p. 146).
Appeal from Circuit Court, Randolph County.
Suit by Mrs. W. H. Sleeth against S. J. Taylor and others, with cross-bills in the nature of original bills by Blake Taylor, B. W. Taylor and others, and A. P. Wilmoth against M. L. Taylor and others. Decrees for complainant and for crosscomplainants B. W. Taylor and others, and M. L. Taylor and Lydia A. Taylor appeal.
Reversed in part. Affir.med in pari. Remanded.
W. B. & E. L. Maxwell, for appellants.
S. T. Spears, Harding & Harding, and Arnold & Arnold, for appellees.
poffenbarger, president:
Only a few of the many issues developed in this cause have been brought up by the appeal. They are limited to questions pertaining to the alleged dower right of Lydia A. Taylor, widow of the judgment debtor against whom the suit was instituted, and certain claims of right of subrogation, by Marvin L. Taylor, son of the judgment debtor and fraudulent grantee of a portion of his real estate. The decree setting aside the deed made to him by his father, entered October 18, 1915, was permitted to become unappealable by lapse of time, but the decree of October 19, 1916, ascertaining the liens upon the real estate and determining their priorities, was attacked in time by an appeal,
E. E. Taylor, the husband and father, owned some real estate individually and was jointly interested with other parties in the ownership of additional parcels, some of which are alleged to have been partnership properties. Some of the latter belonged to the firm of Taylor & Taylor, composed of E. E. Taylor and Blake Taylor and doing an engineering and real estate business. One piece and some personal prop- erty belonged to the News Printing Company, a partnership composed of E. E. Taylor, B. W. Taylor, C. M. Marstiller and A. P. Wilmoth. The members of these firms were made parties to the original bill in their individual capacities, not as partners. Blake Taylor, B. W. Taylor, Wilmoth and Marstiller and A. F. Wilmoth in his individual right, filed in this suit, cross-bills in the nature of original bills, setting up the partnership relations, their equitable claims against E. E. Taylor and the financial condition of the firms, and identifying the tracts of land belonging to them. Claiming to be creitors as well as partners of E. E. Taylor, these respondents attacked a deed dated February 7, 1906, and made by Lenora Kiddy and her husband to E. E. Taylor and his wife, and a deed dated, November 1, 1909, made by E. E. Taylor to his son, Marvin L. Taylor, and conveying to the latter a one-half interest in the tract of land, containing 481/2 acres, obtained, by the deed from Lenora Kiddy, as having been made with intent to hinder, delay and defraud the creditors of the grantor in the latter, the former only as to the half interest conveyed to Mrs. Taylor. They also charged fraudulent use of the husband's money in the improvement of the wife's alleged interest in the 48 1/2 acre tract. Among other things, they prayed dissolution of the partnership and settlement of their affairs and the setting aside of said deeds, to the extent of their obstruction of their rights as creditors and subjection of any interest the wife might have in the land to their debts, to the extent of the value of the improvements made thereon by the husband.
Pending the suit and before the filing of the cross-bills, E. E. Taylor died and his son, Marvin L. Taylor, was appointed administrator of his estate. Both he and his mother filed separate answers to the cross-bills, denying all fraud and fraudulent intent in said conveyances, and the widow, in some of her answers, claimed dower in all of the land of which her husband died seized, including the undivided one-half interest in the 481/2 acree tract conveyed to the son, she not having joined in that deed. The commissioner to whom the causes were referred made no reference whatever in his report, to the matter of dower in the land, his report was not excepted to on that ground and neither of the two decrees entered in the consolidated causes made any provision for her dower.
The widow's right to complain here of the lack of such provision in the decree is challenged on the ground of alleged non-action of the trial court, respecting the subject matter. A denial of legal right may be effected as well by the silence of a judgment or decree as by verbal expression thereof. What is necessarily implied is as firmly established as if it had been expressed in words. Entry of a judgment or decree, without a disposition of a demurrer to the declaration or bill, impliedly overrules the demurrer. Failure of a decree for money to allow credit for a fully established and uncontroverted payment on the debt would be a palpable denial of right by necessary implication. Under such circumstances, the appellate court cannot say the trial court has not acted upon the omitted subject. Such a denial of right is a very common form of judicial error. Nor is this a decree upon a bill taken pro confesso, of which complaint must be first made in the trial court. Mrs. Taylor set up her right in that court, if any she has, and it was denied her. The error is a judicial one not correctible by motion under the second clause of sec. 5 of ch. 134 of the Code, Stringer v. Anderson, 23 W. Va. 482; Bent v. Patten, 1 Rand. 25.
As all the lands of any considerable value, other than the 481/9 acre tract, were adjudged to be partnership property and to be encumbered beyond their values by partnership debts and obligations, the principal subjects of controversy here relate to the 481/2 acre tract. It was conveyed to E. E. Taylor and Lydia A. Taylor by Lenora M. Kiddy and her husband, by a deed dated, February 7, 1906, for a recited consideration of $3,000.00, $1,400.00 of which is acknowledged therein to have been received in cash and the remainder of which was deferred in two equal installments of $800.00 each and secured by a vendor's lien. Some time afterwards, Taylor paid one of these $800.00 notes, and, at the date of his conveyance to M. L. Taylor, the other $800.00 note remained unpaid and was held by Mary A. Coberly to whom it had been assigned by the; Kiddys. The deed from E. E. Taylor to M. L. Taylor, conveying the one-half interest in the tract, recited a consideration of $2,500.00, $900.00 cash in hand paid and the assumption of the...
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