Tompkins v. Absent

• Decision Date: 28 April 1877
• Citation: 10 W.Va. 156
• Court: West Virginia Supreme Court
• Parties: Tompkins' Ex'r v. Stephens et al. (Absent, Moore, Judge.)

10 W.Va. 156

Tompkins' Ex'r

v. Stephens et al.(Absent, Moore, Judge.)

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

1. A decree of a circuit court granting or refusing a new trial on

on an issue out of Chancery, may be reviewed in the Supreme Court of Appeals

2. Prior to the passage of the Code of West Virginia, on the trial

of an issue out of Chancery, a defendant had a right to have his answer read, as evidence to the jury. And allegations of fact, positively stated in the answer, responsive to the bill, should have had, before the jury, the same effect us such answer then should have had, when read on the hearing in the chancery cause.

3. If, prior to the passage of the Code of West Virginia, such an-

swer was not permitted to be read to the jury as such evidence, a new trial of the issue should have been awarded by the Chancellor, unless he was satisfied that if such answer had been read as such evidence, the verdict of the jury ought not, on that account to have been different.

4. If an issue out of Chancery was tried during the late war under

circumstances occasioned by the war that rendered the trial unsatisfactory, the Chancellor ought to have set it aside; but though the trial was during the war and unsatisfactory in its character, yet if this unsatisfactory character of the trial was not, occasioned by the war, but by the fact that one of the parties to the issue had, at the time of the trial, abandoned the case or become utterly, indifferent to the result of the trial, the Chancellor, on his application made two years after the close of the war, ought not to have set aside such verdict.

The Hon. George Loomis, then a circuit judge, at the April term, 1867, of the circuit court of Mason county? rendered a decree by which he set aside the verdict of a jury, rendered at the April term, 1863, of said court, upon an issue directed to be tried at the bar of said court, in a cause then therein depending, wherein Rachel M. Tompkins, executrix of William Tompkins, was plaintiff, and William J. Stephens and others, were defendants.

An appeal was granted from said decree upon the petition of said executrix.

In the opinion of Green, President, may be found a sufficient statement of the cause.

T. B. Swan, for appellant, referred to the following authorities:

Goods v. Lewis' adm'r, 4 Leigh, 635; Tanahan el al. v. Universal Insurance Co., 1 Peters, 183; 2 H, & M., 525; 2 T., 12, 113; 2 H. & M., 318; Phasant v. Clamants, 2 Leigh, 474. 5 Wend., 114; 10 Wend., 285; Brough v. Shants, 5 Leigh, 598; 2 T. C., 305; Code Va., p. 733, ch. 177, § 15; Carter v. Campbell, Gil. 270; Apthup v. Comstock, 2 Pap., 487; Hutchinson el at, v. Kelly, 1 Rob. R., 123; Garland v. Reeves, 4 Rand., 289.

Smith & Knight, for appellees, cited the following authorities:

2 Daniels' ch. Pr., 1286; Poxell et ux v. Manson, 22 Gratt., 117, 190; 2 Graham and Waterman on New Trials, 49; 2 Mad., ch. 481; Slaco v. Maffat, 2 Ves., 553; 2 Daniels' Chr. Pr., 1307; 3 Graham and Waterman on New Trials, 1553, 1554, 1578; Code Va., ch. 117, § 15; Code W. Va., 627, § 15.

Green, President:

William Tompkins, in 1855, instituted a suit in chancery in the circuit court of Mason county, to set aside as fraudulent a certain conveyance made by Abraham Wil- liams and wife to his co-partner and brother-in-law, William J. Stephens, on August 10, 1852, and to subject his interest in the real and personal property thereby conveyed, to a judgment obtained by the plaintiff against him. The bill alleges that in 1850 Williams and Stephens formed a partnership for the manufacture of salt at West Columbia, in Mason county, and purchased a large amount of property, both real and personal; that one Friend, also claimed to be a partner, and was entitled to one third interest in this partnership. This was denied by Stephens and Williams; and that Friend instituted a chancery suit in Mason circuit to establish his interest; a copy of the record of this suit is filed with the bill; that said firm built a salt furnace on their property, bored salt wells, built out-houses, opened coal banks, and placed on said property all the necessary fixtures and erections for the manufacture of salt; that the said firm also had a store house on their said property, and during the years 1851, 1852, and up to August, 1853, were engaged in making salt and carrying on the business of merchandizing. The bill further alleges that Williams being much embarrassed and really insolvent, to defraud his creditors generally, and the plaintiff particularly, conveyed all his interest in said property, real and personal, to his brother-in-law and partner, William J. Stephens, for the pretended consideration of $9,866, on August 10, 1852; that Stephens was cognizant of this fraud and was aiding therein; that no part of this pretended consideration wTas ever paid; that Stephens was not in a condition to make this purchase, and had no means of paying the pretended consideration; that this pretended consideration was grossly inadequate, both parties regarding the interest of Williams then as worth much more; that Stephens, with the consent of Williams, in July and August, 1853, sold said property, real and personal, for $64,400; that of this purchase money Williams had collected $23,600, and had received an order to collect $10,250 more; that the debts of the firm of Williams & Stephens were ineonsid-erable, as appears by an exhibit filed by Stephens in said chancery suit brought by Friend. And the plaintiff charges that a portion of the alleged debts in this exhibit arc not justly due, specifying these debts.

To this bill Stephens & Williams filed separate answers. The answer of Stephens has been lost or taken from the papers of the suit, but at what time, in no manner appears, and it is now admitted that it can not be found or restored. The answer of Williams simply refers to and adopts this answer of Stephens, now lost, and denies in general terms all fraud, and says that the $9,866 was paid by the giving of negotiable notes, which he has transferred.

A large number of depositions were taken by both parties, and on the 23d day of April, 1858," the court being ot opinion that the main question in this cause is one proper for a trial by jury, it was adjudged, ordered and decreed that an issue be made up and tried by a jury at the bar of this court, to ascertain whether or not the deed of conveyance from Abraham Williams and Lucy E., his wife, to William J. Stephens, dated the 10th day of August, 1852, was made and executed on the part of said Abraham Williams for the purpose of delaying, hindering and defrauding his creditors, and whether said William J. Stephens, in receiving said conveyance, was cognizant of and participating in said fraudulent purpose of the said Abraham Williams, and upon the trial of this issue, the bill of the complainant and the answer of the defendants, William J. Stephens and Abraham Williams, may be read for the purpose of explaining the pretensions and claims of the respective parties; and the depositions taken and filed in the cause may be read in evidence in the trial of the said issue, provided the witnesses are out of the commonwealth or unable to attend personally, from sickness or other infirmity.

In ordering the issue, the defendants, by their counsel, claimed that the answers of William J. Stephens and A. Williams, when read before the jury, on the trial of such issue, should have the same effect as they would be entitled to in a court of equity, when read by the Chancellor, which the court declined to direct."

Accompanying this decree was an opinion of Judge Summers, which sufficiently shows the character of the evidence then before the court, and the nature of the controversy. The following is a copy of this opinion:

"Tompkins obtained judgment in the Mason circuit court at October term, 1854, against Abraham Williams, for $4,744.88 with interest and costs. Execution on the judgment returned no property found. He filed his bill at March rules, 1855, charging that Williams was partner with Stephens and Friend in the West Columbia salt property; that he had made a pretended sale of his interest in the concern to Stephens; that this was cither intended to hinder and defraud his creditors; that Stephens was privy to Williams' purpose and design, and that Williams had taken the same on time as before, showing the sale to have been a sham. He asks that Williams' interest be subjected to the judgment, or that if the sale be valid, a sufficient amount of the unpaid purchase money be appropriated to its payment. Williams and Stephens both deny fraud; allege bona fide sale. They say that the purchase money has been paid by Stephens to Williams-in negotiable paper, which was put into circulation and negotiated.

In Williams' answer to bill of Thomas R. Friend (made part of this cause), he says the sale was. upon credit. The contract of sale, dated 19th July, 1852, exhibited with Stephens' answer), states the purchase money to have been $9,866, of which one thousand ($1,000) was payable 1st January, 1853; $3,000, 1st March, 1854 (with interest); the residue in five years, and to bear interest from January 1st, 1854. Stephens assumes all the debts so far as Williams is liable. Williams is to continue superintending the work until the 1st of November following, at $100 per month. The deed from "Williams and wife to Stephens is dated 10th August, 1852. It is acknowledged and admitted to record 4th September, 1852. There is some doubt upon the testimony whether Williams took much control over the furnace and salt operations after the close of the year 1852. In the spring of 1853, Williams was in Philadelphia purchasing goods. He and Stephens both went on. J. B. Smith says they left Cincinnati together in March, 1853. He afterwards met Stephens at Wheeling, on his way back, who informed him he left Williams completing his purchases in Philadelphia. Witness also met with...