Solins v. White
| Decision Date | 20 November 1945 |
| Docket Number | 9703. |
| Citation | 36 S.E.2d 132,128 W.Va. 189 |
| Parties | SOLINS v. WHITE et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. In a suit in equity brought by a creditor to set
aside a conveyance made with intent to delay, hinder, and defraud creditors in violation of Code, 40-1-1, the grantor and his alienee are necessary parties and a person through whom the alleged fraudulent conveyance passes, who acts only as a mediary to transfer title to another, is a proper, though not a necessary, party. In such suit it is unnecessary to make the creditors of the fraudulent grantor parties, or to have the defrauded creditors convened, or, where plaintiff is a judgment lien creditor, to have execution issued on plaintiff's judgment.
2. A deed from an insolvent father to a son, though made through a mediary, is prima facie fraudulent as to existing creditors.
3. The right of a defrauded creditor, under Code 40-1-1, to have the alleged fraudulent deed set aside is not affected by the fact that the grantee paid a valuable consideration, where the grantee participated in the grantor's fraudulent intent.
4. 'The general rule, denying an appeal from a decree for costs alone in a chancery suit, does not apply in a case involving clear abuse of the trial court's discretion in fixing costs.' Traugh v. Hart, 113 W.Va. 388 168 S.E. 137, syl.
Mahan & White, of Fayetteville, for appellant.
Love & Love, of Fayetteville, for appellees.
The plaintiff, Samuel Solins, brought this chancery suit in the Circuit Court of Fayette County against Richard A. White Viola D. White, Raymond A. White, and others, for the purpose of setting aside the deed of P. H. Brown, dated July 8, 1936 conveying to the defendant, Raymond A. White, 106.25 acres of surface land in Fayette County, and to subject said tract of land to the payment of the judgment lien of the plaintiff, Samuel Solins.
The defendants, Richard A. White and Viola D. White, owned jointly the 106.25 acres of land involved in this suit under a deed of Virginia Dearing and others, dated March 25, 1922, which recited a consideration of $4788.00. After the conveyance the Whites entered on the land, and were occupying it as their home at the time and during the pendency of this suit. There were three liens against the property in the following order of priority: (1) A deed of trust, dated August 20, 1927, to secure the Federal Land Bank of Baltimore in the payment of the joint note of Richard A. White and Viola D. White for $1800.00; (2) a deed of trust dated March 11, 1930, to B. A. Roberts, Trustee, to secure the Sewell Valley Bank in the payment of a joint note of said Whites for $2,290.00; and (3) a judgment in the amount of $1,501.38 of U.S. Seal, receiver for Alderson National Bank, rendered by the Circuit Court of Fayette County on April 23, 1932, which judgment was assigned for a valuable consideration to the plaintiff, Samuel Solins. The judgment was docketed on April 27, 1932, in the County Court Clerk's office of Fayette County.
The Sewell Valley Bank ceased to do business on May 30, 1932, and its assets were taken over by The First National Bank of Hinton for liquidation. At the time the Sewell Valley Bank was closed, Richard A. White owned five shares of its stock. White failed to pay his liability of $500.00 as a stockholder, and he and his wife defaulted in the payment of the Sewell Valley Bank's deed of trust indebtedness. The Hinton bank requested a foreclosure of the deed of trust, and P. H. Brown, its president, who evidently was acting for it, and Richard A. White entered into an arrangement whereby Brown would purchase the land at a foreclosure sale for at least three hundred dollars, and thereafter would convey the land to Richard A. White, or to whomever he might designate, upon the payment of $1,000.00 on the indebtedness due the Sewell Valley Bank and the assumption of the balance of the debt owed the Federal Land Bank of Baltimore.
On March 28, 1936, Roberts, trustee under the deed of trust securing the indebtedness due to the Sewell Valley Bank, sold the land at public auction to Brown for the sum of $300.00. Thereafter the board of directors of The First National Bank of Hinton approved the arrangement between Brown and Richard A. White; but no deed was made to Brown until about three and one-half months after the sale. In the meantime Richard A. White made diligent effort to obtain the $1,000.00 necessary to satisfy the Sewell Valley Bank indebtedness. Finally, on or about July 15, 1936, he obtained $800.00 from the Fayetteville Building & Loan Association, which was carried on the loan company's records in the names of T. L. White and Raymond A. White, Richard A. White's sons, and Grace M. White, and delivered the loan company's check for $800.00, together with two other checks aggregating $200.00 to Brown in payment of the $1,000.00 due, and $75.00 to pay the expense of the trustee's sale. Coincident with this payment a deed from Roberts, trustee, to P. H. Brown, and from P. H. Brown to the defendant, Raymond A. White, each dated July 8, 1936, were delivered to Richard A. White, who had them recorded. At that time Richard A. White owed the Federal Land Bank of Baltimore $1,610.24, of which he has since paid $756.44.
On October 21, 1941, within ten years following the rendition and docketing of plaintiff's judgment, plaintiff brought this suit, in which he sought to establish an alleged fraudulent intent of Richard A. White and Raymond A. White to delay, hinder and defraud plaintiff as a creditor of Richard A. White in the collection of plaintiff's judgment by having the land deeded from Brown to Raymond A. White, instead of having a conveyance made to Solins' judgment debtor, Richard A. White, which plaintiff claims is in violation of Code, 40-1-1.
The bill of complaint alleges that the deed of trust of the Federal Land Bank of Baltimore was the only lien against the property, other than plaintiff's judgment lien, and was prior thereto. It prayed, among other things, that reference be had to a commissioner for the purpose of having the liens against the property ascertained and that the property be sold subject to the deed of trust of the Federal Land Bank should it so elect. The latter appeared and asserted in its answer that it objected to any sale other than that which was subject to its deed of trust, and was dismissed as a party defendant.
The matters involved in this suit were referred to a commissioner in chancery who reported the deed of Brown to Raymond A. White was made with intent to defraud Richard A. White's creditors and did defraud plaintiff to the extent that Richard A. White supplied a part of the purchase price of the land, but that the one-half undivided interest of Viola D. White was not affected by the transaction for the reason she did not participate in the fraud. The circuit court, in affirming the commissioner's report, held that Richard A. White intended by the conveyance under attack to defraud his creditors to the extent that he supplied one-half of the money entering into the purchase price of the property, Raymond A. White furnishing the other half thereof; that Viola D. White had no part or knowledge of Richard A. White's fraud; that the defendant, Raymond A. White, knew of his father's fraudulent intent; and that the conveyance of Roberts, trustee, to Brown, pursuant to the foreclosure sale, was free from fraud. Upon the basis of this holding the court decreed: (1) That Viola D. White's undivided interest in the land was not affected by the fraud; (2) that the fraud affected only the money paid by Richard A. White in redeeming the land under the White-Brown arrangement after the foreclosure sale; (3) that Raymond A. White might avoid the effect of the alleged fraudulent transaction by paying to plaintiff the sum of $537.50; (4) that the sale of the land caused it to be discharged from plaintiff's judgment lien; and (5) decreed a sale of the property subject to the Federal Land Bank's deed of trust.
The record discloses that Viola D. White had no knowledge of Richard A. White's alleged fraudulent intent. The evidence conflicts on the question whether Raymond A. White furnished one-half of the purchase price of the property. Likewise there is a conflict in the evidence whether Raymond A. White, at the time the conveyance was made, knew of the alleged fraud. Richard A. White says he did as he and his son had discussed it. Raymond A. White says he did not. The record seems to indicate that after the conveyance from Brown to Raymond A. White the relations between Richard A. White and his son became strained. Be that as it may, the plaintiff, Samuel Solins, except...
To continue reading
Request your trial