Sleeth v. Taylor
| Decision Date | 19 March 1918 |
| Docket Number | (No. 3330.) |
| Citation | 95 S.E. 597 |
| Parties | SLEETH et al. v. TAYLOR et al. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Appeal from Circuit Court, Randolph County.
Bill 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. F. Wilmoth against M. L. Taylor and others. Decrees for complainant and for cross-complainants B. W. Taylor and others, and M. L. Taylor and Lydia A. Taylor appeal. Reversed in partand affirmed in part and dower rights and liens decreed, and cause remanded.
W. B. & E. L. Maxwell, of Elkins, for appellants.
S. T. Spears, Harding & Harding, and Arnold & Arnold, all or Elkins, for appellees.
POFFENBARGER, P. 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, 1910, 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 property belonged to the News Printing Company, a partnership composed of E. E. Taylor, B. W. Taylor, C. M. Marstiller, and A. F. 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 creditors 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 one-half interest in the tract of land, containing 48 1/2 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 crossbills, 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 seised, including the undivided one-half interest in the 48 1/2-acre 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 nonaction 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 section 5 of chapter 134 of the Code (sec. 4979). Stringer v. Anderson, 23 W. Va. 482; Bent v. Patten, 1 Rand. (Va.) 25.
As all the lands of any considerable value, other than the 48 1/2-acre tract, were adjudged to be partnership property and to be incumbered beyond their values by partnership debts and obligations, the principal subjects of controversy here relate to the 48 1/2-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, $1,400 of which is acknowledged therein to have been received in cash and the remainder of which was deferred in two equal installments of $S00 each and secured by a vendor's lien. Some time afterwards, Taylor paid one ofthese $800 notes, and, at the date of his conveyance to M. L. Taylor, the other $800 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, $900 cash in hand paid and the assumption of the payment of the $800 purchase-money note held by Mary A. Coberly and $800 due from the grantor to C. C. Coberly and evidenced by his note for said sum. The recited cash consideration was not paid. It consisted of an alleged antecedent indebtedness of the father to the son. The $800 note held by C. C. Coberly and assumed by the grantee in the deed was for money borrowed by E. E. Taylor, and partly used, possibly, in the making of the cash payment on the land to Mrs. Kiddy.
Neither by a cross-assignment of error nor otherwise do the appellees complain of the court's denial of the relief prayed for against Mrs. Taylor, respecting the Kiddy land and the improvements thereon. They merely attempt to justify the disallowance of her dower in the husband's half of that tract on the ground of their alleged right to such relief. Whether the trial court could properly set off one independent right against another in the manner suggested is not a proper subject of inquiry in this cause, for the alleged right of the appellees has no foundation in law.
The money used in the purchase of the Kiddy land, as well as that used in the extensive improvement thereof, may have belonged to the husband. What was used in the making of the cash payment of the purchase was admittedly his. After that purchase was made in February, 1906, a tract of land belonging to the wife and another belonging to the husband were conveyed to H. C. Jones, in consideration of $4,772.50, by a deed dated some time in October, 1906, and some of the money derived from the sale was no doubt used in the improvement of the Kiddy property, but the record does not disclose, with any degree of certainty, how much of it was so used nor the amounts of the respective interests therein. Mrs. Taylor was manifestly a volunteer in the deed...
To continue reading
Request your trial