Swope v. Wade

• Decision Date: 30 October 1928
• Docket Number: 6203.
• Citation: 145 S.E. 384,106 W.Va. 265
• Parties: SWOPE et al. v. WADE et al.
• Court: West Virginia Supreme Court

145 S.E. 384

106 W.Va. 265

SWOPE et al. v. WADE et al.

No. 6203.

Supreme Court of Appeals of West Virginia.

October 30, 1928

Submitted October 23, 1928.

Syllabus by the Court.

He who alleges fraud must prove it. Though there are certain well-recognized indicia of fraud, nevertheless, so long as fraud does not appear from the whole evidence, the charge cannot be sustained.

Where a transfer of real estate is for valuable consideration, it cannot be successfully attacked because of fraudulent intent of the grantor, unless it be made to appear that the grantee had notice of the grantor's fraudulent intent, or was in possession of facts sufficient to put the grantee on inquiry which would have led to discovery of the grantor's intent.

Points 2 and 3 of the syllabus of Miller v. Correll, 97 W.Va. 215, 124 S.E. 683, approved and applied.

Point 2 of the syllabus of Davis et al. v. Davis Trust Co., 105 W.Va. ___, 146 S.E. ___, approved and applied.

Appeal from Circuit Court, McDowell County.

Suit by G. A. Swope and others against C. W. Wade and others. From an adverse decree, plaintiffs appeal. Affirmed.

Harman & Howard, of Welch, for appellants.

Strother Sale, Curd & Tucker, of Welch, for appellees.

MAXWELL J.

In this suit in equity instituted in the circuit court of McDowell county by G. A. Swope and others, creditors of C. W. Wade and Minnie Wade, his wife, against the said Wade and W. M. Wade a brother of C. W. Wade, the plaintiffs seek to set aside as fraudulent a deed of conveyance of real estate executed the 12th day of January, 1925, by C. W. Wade and wife to W. M Wade. The circuit court found that the plaintiffs were not entitled to the relief for which they prayed and dismissed their bill, and from that action of the court they appeal.

In a deed dated the 8th day of December, 1923, E. W. Cullen in his own right, and as trustee, and Eva Cullen, his wife, conveyed to Minnie Wade, in consideration of the sum of $9,000, all of which was to be paid in deferred installments represented by notes, certain real estate in the city of Welch, McDowell county, W.Va. It being later considered that the said deed was not sufficient, in that E. W. Cullen's co-owners of said property did not join in the execution of the deed, a second deed, under date of August 8, 1924, was executed to Minnie Wade for the said property. In this later deed E. W. Cullen's associates, H. H. Riley and G. A. Swope, joined with him as grantors. On the same day Minnie Wade and C. W. Wade executed to J. N. Harmon, Jr., and another, trustees, a deed of trust on said property to secure to Cullen, Riley, and Swope the payment of a note of $9,000 of even date with said trust. This note was representative of the purchase price of said lot and was to be payable in monthly installments of $200 each, with interest, and there was included in the note a so-called accelerating clause making all installments due and payable upon default in the payment of as many as three consecutive monthly installments.

Some months later, the grantee being in default of the payment of three or more monthly installments, as provided for in the note, the trustees subjected said property to sale at public auction and sold the same to the said Swope and Riley, for the sum of $5,000; they being the highest bidders. A deed for said property was executed by the trustees to said purchasers January 21, 1925. Following the trustees' sale Cullen, Riley, and Swope instituted an action at law in the circuit court of McDowell county against C. W. Wade and Minnie Wade, and at the February, 1925, term of said court, obtained judgment against the defendants for the sum of $4,093.25, being the amount of the unpaid balance of the purchase money for said property over and above the amount for which the property was sold at the trustees' sale. This judgment has not been discharged, and in their efforts to enforce payment of the same, the plaintiffs in this suit undertake to pursue certain other real estate formerly owned by C. W. Wade and Minnie Wade. This real estate was by deed of the 12th of January, 1925, conveyed by its said owners to the defendant W. M. Wade for a purported consideration of $8,000 recited in the deed as cash in hand.

It appears from the record that the Wades are colored people of limited education. W. M. Wade, designated in the record as "Willie," appears to be a respected citizen who through thrift and industry, had accumulated some property of consequence. His brother, C. W. Wade, referred to in the record as "Boss,"has had a less fortunate career. His mercantile or restaurant business has been the occasion of many executions against him for the collection of debts reduced to judgment, and his "bootlegging" activities have subjected him to not infrequent fines and jail sentences. Repeatedly, when he was in trouble and needed funds to satisfy executions or to pay fines and court costs, his more thrifty brother came to...