Vance Shoe Co. v. Haught
| Decision Date | 23 November 1895 |
| Citation | 23 S.E. 553,41 W.Va. 275 |
| Parties | VANCE SHOE CO. et al. v. HAUGHT et al. |
| Court | West Virginia Supreme Court |
1. There can be no decree without allegations in the pleading to support it.
2. A general charge of fraud in a bill is not sufficient. There must be given, in addition to the general charge, the facts constituting the fraud, though not what is merely evidence.
3. To overthrow, for fraud, the title of a purchaser, it must be alleged in the bill that his grantor committed the act fraudulently to defraud creditors (giving the facts), and that the purchaser fraudulently conspired with him, or had notice of his grantor's fraudulent intent, or had notice of the fraud rendering his grantor's title void.
4. Where a fraudulent purchaser yet owns the property, the creditor must subject it, and cannot take a personal, money decree for his debt, or the value of the property, against the purchaser; but if the fraudulent purchaser has sold the property to a bona fide purchaser, so that it cannot be reached, the creditor may have a money decree against the fraudulent purchaser for the amount he received for the property, or, if that be less than its actual value, then for such value; and, if the bona fide purchaser yet owes for the property, the money in his hands may be followed, and subjected in his hands.
5. If a decree find or state a fact or opinion as its reason, and it be right for any reason apparent from the record, though not for the reason given, the giving of a wrong reason or opinion as its basis is not ground for reversal.
6. A bill in equity should contain a prayer for both specific and general relief, but under a prayer for general relief, only there may be granted any relief warranted by the facts alleged; and, under a prayer for specific and general relief may be given the relief asked specifically, and any further relief warranted by the allegations, so it be not inconsistent with the specific relief asked. Where there is no prayer for general relief, but prayer for specific relief and this cannot be granted, other relief cannot be given though the facts would warrant it if there were a specific prayer for it, or a prayer for general relief. There must always be a special prayer for injunction.
7. At common law, a judgment erroneous as to one is erroneous and must be reversed as to all; but in equity, under our statute, if only one appeal from a joint decree, and the rights of parties stand on different and separable grounds, there may be a reversal only in part.
Appeal from circuit court, Wetzel county.
Bill by the Vance Shoe Company and others against William Haught and others to set aside an execution sale as in fraud of creditors. There was a decree for plaintiffs, and from that part thereof adjudging a personal liability against defendant Christie Brookover the latter appeals. Reversed.
W. S. Wiley, for appellant.
S. B. Hall, for appellees.
Vance Shoe Company and others filed in Wetzel county a bill in equity against William Haught and others, alleging his indebtedness to it and various other creditors, and that he had confessed fraudulent judgments in favor of David Haught and one Rice, under which, by execution, a stock of goods had been sold, and purchased by David Haught, and that William Haught owned a house and lot conveyed to him by Brookover; and the bill prayed that the judgments and execution sale under them be held fraudulent, that Rice and Haught be held for the price the goods brought, and that either the goods or their proceeds be subjected to pay plaintiffs' debts. An amended bill revealed the fact that David Haught had sold said goods to Loy, who had executed to David Haught promissory notes therefor, remaining unpaid, in which Brookover was surety; and this bill also asked that said judgments and sale of goods be held fraudulent, and David Haught and Rice required to account for the sale price, and further prayed that David Haught be enjoined from selling the notes given him by Loy and Brookover for said goods, and that Loy and Brookover be enjoined from paying them. Later, Sarah E. Eddy filed in the case her petition, setting up that David Haught had assigned her two of the notes on Loy and Brookover, and asking to be made a party, and for dissolution of the injunction restraining Loy and Brookover from paying said notes, and that she be allowed to withdraw the notes filed with petition, and collect them. A decree in the case held the confessed judgments, and the sale of the goods under them, fraudulent, as also the sale of the goods from David Haught to Loy, and that William and David Haught, Rice, Loy, and Brookover were participants in the fraudulent transaction to defraud "the creditors of William Haught, and are all therefore liable for complainants' claims set up in the bill," and went on to decree those debts against them, as a personal decree. The decree also declared that no necessity existed for the petition of Eddy, and dismissed it, and gave her leave to withdraw the notes of Loy and Brookover, and to proceed at law to collect them, and dissolve the injunction against their payment. Brookover alone appeals from this decree.
Now, on the basis of fraud in Brookover in the confession of judgments, the sale under them, or the sale by David Haught to Loy, there is no warrant for that clause of the decree branding Brookover with fraud, or in that adjudging him, for such fraud, liable by personal decree for the plaintiffs' demands, as if he were an original debtor for them, and for these reasons:
Nowhere do the bills charge fraud on Brookover. There cannot be a decree against a man, without allegation against him, to render him liable. Point 3, Roberts v. Coleman, 37 W.Va. 143, 16 S.E. 482, and citations, page 152, 37 W. Va., and page 482, 16 S. E.; Bierne v. Ray, 37 W.Va. 571, 16 S.E. 804. And more particularly is it necessary, if the object be to make one liable for fraud, that the fact of fraud, and the main facts constituting it, be alleged,--not all the facts which are merely evidence of it, but those constituting it. Point 5, Zell Guano Co. v. Heatherly, 38 W.Va. 409, 18 S.E. 611; Pyles v. Furniture Co., 30 W.Va. 123, 2 S.E. 909. I seek in vain in the pleadings for any charge of fraud against Brookover, or the party for whom he is surety, Loy, or any notice by them of fraud in others. There is not an intimation of any fraud in them as to the judgments or execution sale. It is charged that David Haught fraudulently sold the goods to Loy, but, while this charge does make David Haught a worker of fraud, it alleges no conspiracy between him and Loy and Brookover; and, to make a purchaser liable, it must be charged that he is an active agent in the fraud, or had notice of the vicious design of his vendor, or of the fraud rendering the transaction void. Code, c. 74, § 1; Blackshire v. Pettit, 35 W.Va. 547, 14 S.E. 133.
As to the personal decree against Brookover, as bound for the debts: If chargeable with fraud, I do not think this proper. He being surety, it would be proper to subject the goods first, if practicable. Treat Loy even as purchasing to defraud, or with notice of the fraud of others, unless he had sold the store,--and he had not,--no personal decree could go against him; and a fortiori not against Brookover, unless he too were participant in fraud. See opinion in Ringold v. Suiter, 35 W.Va. 189, 13 S.E. 46. The decree violates this principle. If the property has been sold to a bona fide purchaser, there may be a decree against the fraudulent vendee, I presume,--not for the whole of the creditor's debt, but for the amount realized by the fraudulent vendee; and, if that be less than the value of the property, then for that value. Decree in Wright v. Hencock, 3 Munf. 521; Hinton v. Ellis, 27 W.Va. 422; Lockhart v. Beckley, 10 W.Va. 87, syl. 10; Ringold v. Suiter, 35 W.Va. 186, 190, 13 S.E. 46, and citations. But, as the debts decreed to plaintiffs are less in amount than the notes of Loy and his surety, I would see no error in this feature basing the decree on the notes as below treated, except for the fact that, after allowing the Eddy notes to her, there is not enough left to pay the debts decreed. Though David Haught paid more for the goods, Brookover became bound only for the notes, and to their extent; and though, if Loy were chargeable as for fraud, it could be for the value of the goods, yet Brookover would be chargeable only for his engagement, unless a party to fraud.
There is no ground on the pleadings to charge Brookover or Loy on account of any fraudulent action of their own. Nor do I find proof of it in the evidence. But, though Brookover is not liable for fraud, he and Loy are liable for the purchase money for the stock of goods. The bill charges...
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