White v. Perry.

• Decision Date: 09 November 1878
• Citation: 14 W.Va. 66
• Parties: White v. Perry.
• Court: West Virginia Supreme Court

14 W.Va. 66

White

v.Perry.

Supreme Court of Appeals of West Virginia.

Decided November 9, 1878

1. The doctrine of lis pendens, applies only to a purchaser, pend-ing the suit, of the subject matter of controversy in the suit; and therefore the recording of a lis pendens when a common law suit is brought to obtain judgment for a debt, will not bind the lands of a defendant, which are bona fide purchased pending such suit.

2. The wife, having no interest in the subject matter after the death of the husband, is competent to prove facts coming to her knowledge from other sources, and not by means of her situation as wife, though they relate to transactions of her husband; but she is incompetent to prove any declaration of his made to her, or in her presence, which might affect his character; even could such declaration be proven by her? even if they did not affect his character.

3. The law does not presume fraud; and it is not to be assumed on doubtful evidence, or circumstances of mere suspicion; but it must be distinctly proven. It need not however be proven by direct and positive proof; but like any other fact it may be proven by circumstantial evidence; and if the facts and circumstances of the case are such as to lead a reasonable man to the conclusion, that fraud in fact existed, and was known to the grantee, the conveyance affected thereby should be declared void in Mo as to creditors of the grantor.

Appeal from, and supersedeas to, a decree of the circuit court of Greenbrier county rendered on the 1st day of November, 1877, in a cause in said court then pending in which George White was plaintiff, and Joseph Perry and others were defendants, granted on petition of Liewis T. Tolley.

Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.

Green, President, furnishes the following statement af the case:

In February, 1876, George White brought a chancery suit in the county court of Greenbrier county against Joseph Perry, Lewis Tolly, David Warts and Lowery & Holly. In his bill he alleges, he recovered against Perry on December 1, 1875, a judgment in said court for $1,885.75 with interest from that day and costs $21.76. Which judgment was regularly docketed on December 3, 1875; that when he commenced the suit, in which the judgment was rendered, on October 4, 1875, he had a lis pendens duly recorded, which stated, that the object of the suit was to obtain a judgment on a certain bond, and ultimately to obtain a lien on all of Perry's lands, specifying them; that nevertheless Tolly afterwards on October 20, 1875, bought, or pretended to buy, of Perry, and had conveyed to him by deed, a portion of Perry's land; that the other defendants Watts, and Lowery & Holly had obtained severally judgments against Perry; that Watts's judgment was barred by the statute of limitations, and the judgment of Lowery & Holly had been paid off; that Perry had no personal property, out of which plaintiff?s judgment against him could be made, and the plaintiff had a right to charge his lands, including the land bought hy Tolly, with the payment of his judgment. The bill prays, that all the lands of Perry may be so subjected, and especially all the land embraced in the lis pendens notice; and for general relief. Copies of the judgments named in the bill and of the lis pendens, which included the land afterwards bought by Tolly, and the deed to him were filed.

Lowery & Holly answered the bill, admitting that " their debts were paid. Wm. P. Bucker and Mathews & Mathews filed petitions setting up judgments, which had been rendered in their favor severally in March, 1876, and January, 1876. The bill was taken for confessed as to all the other defendants; and on March 11, 1876, the county court without deciding, whether the lands deeded to Tolly could be charged by reason of the recording of this lis pendens, decreed, that Perry should pay to the plaintiff and to the petitioners severally their judgments in the order of their rendition; and if he failed to do so in thirty days, his lands, other than those deeded to Tolly, should be sold on certain terms by a commissioner; and the court further decided, that the debt due to defendants Lowery & Holly had been paid, and that due defendant Watts was barred by the statute of limitations.

The lands were accordingly sold by the commissioner; and after applying the net proceeds to the payment of plaintiff's judgment there remained still due thereon $899.11. At the September term, 1876, the court confirmed the sale, there being no exception to the report of the commissioner; and deciding that the lands, which had been bought by Tolly, were liable for the payment of this balance of $899.11 due the plaintiff, because of the recordation of the lis pendens, it is ordered, that unless this balance be paid in thirty days, a commissioner of the court should sell the land, which had been so conveyed to Tolly.

Afterward on November-24, 1876, Tolly asked leave to file a paper, which was a petition for a rehearing and answer, which leave the court granted, and on its being filed granted the rehearing, and sustainded the decree for the sale of the lands deeded to Tolly. This answer was replied to generally.

In this answer Tolly says, that he was absent at the time, and ignorant of the rendition of the decree to sell his lands. He alleges, that he bought this land for a full and valuable consideration, and has paid since $1,000.00 in full for the same; and further, that when the judgment" was rendered in favor of White, it was expressly agreed with him, that he would not attempt to enforce it against his, Tolly's, land. He claims, that this lii pendens did not bind his lands and asks, that the decree directing its sale may be reheard, and that this petition might be also regarded as his answer to the bill. At the April term, 1877, the cause was by consent removed to the circuit court of Greenbrier.

An amended bill seems to have been filed, while the cause was pending in the county court; but when it was tiled, does not appear. This amended bill alleges, that when Tolly purchased, he had actual notice of the plaintiff's common law suit against Perry; that this purchase was a mere sham intended to delay, hinder and defraud the plaintiff, and that no consideration was paid for said land, pretended to have been purchased by 'folly; that Perry died and his estate had been committed to the sheriff of Greenbrier; and that if Perry was paid for the land, or a bond given therefor* Perry's administrator should account therefor; and it makes this sheriff, as administrator of Perry, a defendant.

After the case was removed to the circuit court, Tolly tiled his answer to this amended bill. He denies its allegations, and says, "that when he bought this land of Perry, he still had other lands unincumbered amply sufficient, at a price much less than its full value, to pay the debts of the plaintiff and all other debts, that he owed; and that he bought this land in perfect good faith, and at its full value; that he bought in October, 1873, at the price of of $1,000, 00, to be paid within a very few days; that he executed his bond for the purchase money, and in three days thereafter paid it off in full, and took it up; and that the whole of said purchase money was paid by him in cash, and said bond taken up, cancelled and destroyed."

On June 23 the court referred the cause to a commis- sioncr, to settle the accounts of Perry's administrator and the debts of Perry and their priorities. The commissioner reported, that no personal assets had come into the hands of the administrator; that Perry's debts with interest amounted to $2,979, 84, all judgments, taxes or liens on the lands, except $4.16.78; that the lands sold by Perry to Tolly were assessed at $1,069.66; and that the real estate, of which Perry died seized, was worth from $650.00 to $700.00.

This report was by the decree of the circuit court, rendered November 11, 1877, confirmed, it not being excepted to. And White having theretofore purchased all the lands of Perry, which had been sold by a commissioner of the court, he was ordered to pay certain creditors having liens prior to his $252.97, and the balance of the purchase money $981.66 was directed to be credited on the judgment due White. The court then rendered no decision on the questions at issue between White, the plaintiff, and the defendant Tolly.

A second amended bill was filed, making the widow and children of Joseph Perry parties defendant, and setting forth the character of plaintiff's debt, and that it was an old debt well known to Tolly, who was a near neighbor, and knew of Perry's utter insolvency for years prior to his death, he not having $200.00 worth of personal property, and his land being insufficient to satisfy even the plaintiff's debt; and it reiterates the charges that the pretended purchase made by Tolly of Perry was a fraud, and that no valuable consideration was paid for the land deeded to him.

Many depositions were taken to sustain these allegations by the plaintiff; and many by the defendant Tolly to sustain his answer.

They prove, that both before and after the making of the deed by Perry and wife to Tolly, Perry was a very poor man, having much difficulty to supply his family with necessaries, that the same or greater difficulty of this kind existed after this purchase, they living for a con- siderable time on corn bread and coffee. He had of personal estate at his death about $75.00 worth. Tolly" furnished the family with a small amount of provisions and a little money subsequently to his purchase, and told Perry, that if he wanted anything for himself or family, to send to him, and if he did not have it, he would get it for him. Tolly was a man of considerable means, and had generally money on hand, and was in good credit. He had full notice of the amount of the plaintiff's claim; and of the recording of the Us pendens, when he obtained the, deed from...