Smith, Admir v. Yoke et al.

• Decision Date: 20 February 1886
• Citation: 27 W.Va. 639
• Parties: Smith, Admir v. Yoke et al.
• Court: West Virginia Supreme Court

27 W.Va. 639

Smith, Admir

v.Yoke et al.

Supreme Court of Appeals of West Virginia.

Submitted February 3, 1886.

Decided February 20, 1886.

1. Where the decree sought to be reversed is based upon depositions, whicb are so conflicting and of such a doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusion to be deduced therefrom, the appellate court will decline to reverse the finding or decree of the chancellor, although the testimony may be such that the appellate court might have pronounced a different decree, if it had acted upon the cause in the first instance, (p. 641.)

2. A cause in which the decree of the circuit court, setting aside a conveyance of real estate because fraudulent as to creditors of the grantor, is affirmed in accordance with the principle above declared. (p.6 42.)

, 7. M. Bennett for appellant.

W. W. John Brannon for appellee.

Snyder, Judge:

This is a suit brought May 10, 1879, in the circuit court ot Lewis county by M. T. Smith, administrator of John Co rothers, deceased, against Amy Yoke, John J. Bott.and others, to subject a tract ot 153 acres of land in said county to the payment of two judgments recovered by the plaintiff against Jacob Bott, and to have certain deeds made by said Jacob Bott conveying said land to the defendants, Amy Yoke and John J. Bott, declared fraudulent and set aside as to the debts on which said judgments are founded. The said defendants answered the plaintiff's bill claiming that a full consideration had been paid for said conveyances, and denying that they were made with any intent to delay, hinder or defraud creditors on their part, and that they had no notice of such intent, if any existed on the part of their grantor. The said Amy Yoke further showed by her answer that since the conveyance to her ot said 153 acres of land she had sold and conveyed about 100 acres thereof to Marshall Clark tor a full consideration, all of which had been applied to the payment of liens existing on the land at the time it was conveyed to her.

Depositions were taken by the plaintiff and said defendants in support of the bill and answers, and on March 17, 1882, the court pronounced its decree setting aside the conveyances, by which the title to said land was vested in said Amy Yoke, as to the debts of the plaintiff and others; but finding that the sale and conveyance of 100 acres part thereof to Marshall Clark were made in good faith and the proceeds thereof properly applied to the payment of the liens thereon prior to those of the plaintiff, the court ordered the sale of the residue only of said 153 acres to pay the debts of the plaintiff. From this decree the defendant Amy Yoke appealed.

The only question presented by this appeal is, whether or not testimony, upon which the cause was heard in the court below, warranted the decree. The evidence, upon which the answer to this question depends, is exclusively parol, being the depositions taken and filed by the respective parties; and this testimony is irreconcilably conflicting in regard to the material facts, upon which any decree in the cause must be founded. The rule of the appellate court governing the re- view of evidence in actions at law in such cases is to disregard all the conflicting evidence of the plaintiff in error and give full faith and credit to that of the opposite party, and unless, when the evidence of the respective parties is so treated, it plainly appears that the verdict is not sustained by the evidence, the Appellate Court will refuse to set aside the verdict. Shetf v. Huntington, 16 W. Va. 308; Black v. Thomas, 21 W. Va 709; Morgan v. Fleming, 24 W. Va. 186.

One and perhaps the principal reason for this rule is, that the trial-court and jury see the witnesses and from their manner and conduct while testifying have peculiar opportunities of judging of the weight and credibility of their testimony, an advantage not possessed by the appellate court. In equity causes neither the chancellor nor the appellate court have the witnesses before them. The depositions are all that appear, and both tribunals may inspect these, and thus each has the same opportunities of judging of the character and weight to be given to the testimony. It is, theretore, apparent that this rule is not entitled to the same consideration in equity causes, us is given to it in actions at law tried by a jury. But it is, nevertheless, true that the rule...