The Calhoun County Bank v. Ellison, (No. 10048)

CourtSupreme Court of West Virginia
Citation133 W.Va. 9
Docket Number(No. 10048)
PartiesThe Calhoun County Bank, A Corporation v. William M. Ellison, Administrator, Etc., et al.
Decision Date14 June 1949

133 W.Va. 9

The Calhoun County Bank, A Corporation
v.
William M. Ellison, Administrator, Etc., et al.

(No. 10048)

Supreme Court of Appeals of West Virginia.

Submitted June 7, 1949.
Decided June 14, 1949.


[133 W.Va. 9]

1. Verification

In the absence of statute or rule of court to the contrary, an attorney at law, who is a notary public and also counsel for a party to a suit, but who has no interest in the transaction other than that which ordinarily arises from the relation of attorney and client, is not disqualified by law to administer an oath to his client for the purpose of verifying a pleading in the case or to certify the signature of his client in the verification appended to such pleading.

[133 W.Va. 10]

2. Pleading

The provisions of Code, 56-4-56, which require a defendant in a suit in equity to file an answer within fifteen days after the overruling of his demurrer to a bill of complaint to prevent the entry of a decree granting the relief prayed for in such bill of complaint, unless for good cause shown the time within which to file such answer is enlarged by the court, do not apply to a party to such suit who files an answer to a replication more than fifteen days after his demurrer to such replication has been overruled.

3. Fraud

Fraud may be established by admissions in pleadings filed by a party against whom such charge is made.

4. Pleading

Allegations of fraud in an answer and cross bill and an amended and supplemental cross bill filed in a suit in equity, when not denied by answer or other pleading of the party charged with fraud, will be taken for confessed against such party and need not be established by proof.

5. Fraud

Allegations of fraud, when denied by proper pleading, must be established by clear and convincing proof.

6. Evidence:

In a suit involving claims against the committee of a defendant who has been adjudged to be an insane person, testimony of the claimant, given after the adjudication of insanity and while such insanity continues, in regard to a personal transaction between the claimant and such person, is not admissable to establish his claims against such committee.

7. County Court

The appointment of a committee for an insane person by a county court having jurisdiction of the proceeding in which such appointment is made is not subject to collateral attack.

8. Evidence:

Controverted claims not established by satisfactory proof are properly denied.

[133 W.Va. 11]

Appeal from Circuit Court, Calhoun County.

Suit by The Calhoun County Bank, a corporation, against William M. Ellison, administrator of the estate of W. A. Ellison, deceased, William M. Ellison, J. M. Ellison, and Edna Lockard, to set aside, as allegedly fraudulent as to creditors, deed made by William M. Ellison to Jane M. Ellison, wherein Edna Lockard filed a cross-bill and a supplemental cross-bill asserting certain claims against William M. Ellison. The suit was revived as to William M. Ellison in the name of Rebecca Ellison, a committee, after William M. Ellison had been adjudged incompetent. From an adverse decree, Edna Lockard appeals.

Reversed in part; affirmed in part; remanded with directions.

Lovins, Judge, dissenting. E. L. Eakle, for appellant.

A. G. Mathew, Lorentz C. Hamilton, and I. M. Under- tvood, for appellees.

Haymond, President:

This suit was instituted in the Circuit Court of Calhoun County in August, 1945, by The Calhoun County Bank, as plaintiff, to set aside as fraudulent as to creditors a deed dated July 3, 1945, made by William M. Ellison to his son, J. M. Ellison, for four tracts of land in that county which constituted all the real estate of the grantor. William M. Ellison, administrator of the estate of W. A. Ellison, deceased, William M. Ellison, J. M. Ellison, and Edna Lockard, the appellant, were made defendants to the suit. From a final decree entered April 23, 1947, which granted some of the relief prayed for by Edna Lockard in her answer and cross bill and in her amended and supplemental cross bill, but which denied certain claims asserted by her against William M. Ellison and refused to set aside the deed of July 3, 1945, and two subsequent deeds of trust made by J. M. Ellison in favor of the bank, in so far as

[133 W.Va. 12]

they affect her claims, this appeal was granted by this Court upon her petition.

The bill of complaint, filed at September Rules, 1945, alleged that the execution of the deed in question was the result of a scheme and device entered into between William M. Ellison and J. M. Ellison to hinder, delay and defraud the creditors of William M. Ellison and especially the bank, a contingent creditor of William M. Ellison by reason of the prior mistaken or unauthorized payment by it to him of $5,206.44, in satisfaction of certain certificates of deposit claimed by the defendant, Edna Lockard; that she had demanded payment of the certificates which the bank had refused; that there was a contingent liability upon the bank to see that the proceeds of the certificates were repaid to Edna Lockard and to that extent the bank was a creditor of William M. Ellison; that it had demanded from William M. Ellison repayment of the amount paid to him but that he had refused to make such repayment; that the deed was wholly voluntary and that no consideration whatever was paid by J. M. Ellison for the property conveyed; that the deed divested William M. Ellison of practically all the tangible property owned by him or that could be reached by legal process; that William M. Ellison was insolvent; that J. M. Ellison, a son of William M. Ellison, had no money or property of sufficient value to pay for the land conveyed by the deed; that William M. Ellison had continued to reside upon the land and to occupy it in the same manner as he did before the conveyance; that the deed required the grantee to maintain and support the grantor so long as he lives and reserved to him the use and the occupancy of the residence upon the land; and that William M. Ellison, administrator of the estate of W. A. Ellison, had made no settlement of his accounts as such administrator.

The bill of complaint further alleged that Edna Lockard obtained a judgment against William M. Ellison for costs which had not been paid and that he also had possession

[133 W.Va. 13]

of certain cattle formerly owned by W. A. Ellison, who had transferred them to her, and that William M. Ellison probably was indebted to her for the value of the cattle. It also averred that the bank, as a creditor of William M. Ellison, had the right to maintain this suit for the purpose of setting aside the deed of July 3, 1945, in so far as its rights and the rights of other creditors of William M. Ellison were concerned and to invoke the aid of a court of equity to subject the land so conveyed to sale for the repayment to it of the amount paid by it to him for the certificates of deposit.

The prayer of the bill of complaint was that the deed be canceled, annulled and set aside, in so far as it affects the rights of the bank and the other creditors of William M. Ellison; that the land be sold under a decree of the court; that the proceeds of sale be used to repay to the bank the amount paid by it to him for the certificates of deposit, with interest; and that the plaintiff be granted general relief.

On October 1, 1945, the defendant, Edna Lockard, filed her answer and cross bill in which she asked affirmative relief against the bank and William M. Ellison and J. M. Ellison as defendants to the cross bill. In the answer she admitted the allegations in the bill of complaint as to the fraudulent character of the deed of July 3, 1945, between the Ellisons; denied that the bank had paid William M. Ellison, administrator, the amount of $5,206.44 for the certificates of deposit; and charged that the bank owed her the money due for the certificates which she claimed to own. She alleged that the liability of the bank to pay her for the certificates of deposit was not contingent but absolute; denied that the bank believed it had the right to pay William M. Ellison, administrator, for them; and charged that it then knew that they were assets of the estate of W. A. Ellison to which she was entitled. She averred that the bank knew of her claims against William M. Ellison, administrator, and had refused to pay her the amount of the certificates of deposit and deliver to her other property of the W. A. Ellison estate held by it;

[133 W.Va. 14]

that she had a judgment against William M. Ellison, J. M. Ellison and others for costs amounting to $381.82 which was due and unpaid and owed to her by William M. Ellison; that he also owed her for the value of cattle which he forcibly had taken into his possession; and that William M. Ellison, administrator of the estate of W. A. Ellison, the assets of which she claims as owner, had made no settlement of the estate or of his accounts as such administrator.

By her cross bill, seeking affirmative relief against the bank and William M. Ellison and J. M. Ellison, she charged that it owed her the amount of the certificates of deposit and of United States Government bonds and other evidences of indebtedness, assets of the estate of W. A. Ellison owned by her and which the bank had in its possession and refused to pay or deliver to her; that William M. Ellison was indebted to her in the sum of $5,793.33 for personal property, assets of the estate of W. A. Ellison, owned by her, which he had...

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14 practice notes
  • Gardner v. Gardner, No. 10900
    • United States
    • Supreme Court of West Virginia
    • October 6, 1959
    ...Security Corp. of America, 115 W.Va. 83, 174 S.E. 697; Pettry v. Hedrick, 123 W.Va. 107, 13 S.E.2d 401; Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182. 'Parties will not be permitted to assume successive inconsistent positions in the course of a suit or series of suits in refere......
  • Carter v. Bluefield, (No. 10142)
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...positions in the course of a proceeding with reference to the same fact or state of facts. The Calhoun County Bank v. Ellison, 133 W. Va. 9, 54 S. E. 2d 182; Greenbrier Laundry Company v. Fidelity & Casualty Company of New York, 116 W. Va. 88, 178 S. E. 631; Central Trust Company v. Coo......
  • Timberlake v. Heflin, No. 17978
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...Bank, 155 W.Va. 496, 184 S.E.2d 628 (1971); Gardner v. Gardner, 144 W.Va. 630, 110 S.E.2d 495 (1959); Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182 (1949); F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 8.5(C) (2d ed. It would appear to us that, under the foregoi......
  • Asarco LLC v. Americas Mining Corp., Civil No. 1:07-CV-00018.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 30, 2008
    ...993 P.2d 887, 891 (Utah Ct.App.1999); Sedwick v. Gwinn, 73 Wash.App. 879, 873 P.2d 528, 531 (1994); Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182, 193 98. Prior to the enactment of the UFTA, the fraudulent transfer law of many states was embodied in the Uniform Fraudulent Conve......
  • Request a trial to view additional results
14 cases
  • Gardner v. Gardner, No. 10900
    • United States
    • Supreme Court of West Virginia
    • October 6, 1959
    ...Security Corp. of America, 115 W.Va. 83, 174 S.E. 697; Pettry v. Hedrick, 123 W.Va. 107, 13 S.E.2d 401; Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182. 'Parties will not be permitted to assume successive inconsistent positions in the course of a suit or series of suits in refere......
  • Carter v. Bluefield, (No. 10142)
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...positions in the course of a proceeding with reference to the same fact or state of facts. The Calhoun County Bank v. Ellison, 133 W. Va. 9, 54 S. E. 2d 182; Greenbrier Laundry Company v. Fidelity & Casualty Company of New York, 116 W. Va. 88, 178 S. E. 631; Central Trust Company v. Coo......
  • Timberlake v. Heflin, No. 17978
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...Bank, 155 W.Va. 496, 184 S.E.2d 628 (1971); Gardner v. Gardner, 144 W.Va. 630, 110 S.E.2d 495 (1959); Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182 (1949); F. Cleckley, Handbook on Evidence for West Virginia Lawyers § 8.5(C) (2d ed. It would appear to us that, under the foregoi......
  • Asarco LLC v. Americas Mining Corp., Civil No. 1:07-CV-00018.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 30, 2008
    ...993 P.2d 887, 891 (Utah Ct.App.1999); Sedwick v. Gwinn, 73 Wash.App. 879, 873 P.2d 528, 531 (1994); Calhoun County Bank v. Ellison, 133 W.Va. 9, 54 S.E.2d 182, 193 98. Prior to the enactment of the UFTA, the fraudulent transfer law of many states was embodied in the Uniform Fraudulent Conve......
  • Request a trial to view additional results

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