Wick v. Dawson Et Ux

CourtSupreme Court of West Virginia
Writing for the CourtHOLT
Citation42 W.Va. 43,24 S.E. 587
PartiesWICK et al. v. DAWSON et ux.
Decision Date01 April 1896

24 S.E. 587
42 W.Va.
43

WICK et al.
v.
DAWSON et ux.

Supreme Court of Appeals of West Virginia.

April 1, 1896.


Lex Fori—Married Woman—Charges against Estate—How Enforced—Equity—Discovery— Attachment of Absent Defendant—Lex Loci Rei Sit^e—Lex Loci Contractus — Administrator's Sale—Contract to Set Aside—Validity—Fraudulent Conveyances —Remedies of Creditor.

1. The law of the place where the suit is brought governs the remedy. This includes the mode of proceeding, the form of the judgment or decree, and the methods of carrying them into execution.

2. A claim against the separate estate of a married woman could, in this state, be enforced only by a suit in equity, and by no personal decree, until the passage of section 15 of chapter 3 of Acts of 1893, p. 6, amending chapter 60 of the Code.

3. Bills for relief may also contain prayers for the discovery of facts which are essential to the relief prayed for in the bill.

4. Although a bill be taken for confessed as to any defendant, the plaintiff may have an attachment against him, or an order for him to be brought in to answer interrogatories. Code, c. 125, § 48.

5. The liability of the separate real estate of a married woman to be subjected to the payment of claims against her is governed by the law of the state where such real estate is situated.

6. A contract is made where it is delivered, and the law of the state where it is made generally controls in respect to its validity; but, if it appears that it was made to be performed in some other state, then its validity is to be governed by the law of the place of performance.

7. Land is sold under a decree, but before the sale is confirmed it is agreed, at the instance of the purchaser, between him and a creditor under the decree entitled to a part of the proceeds of sale, that if the latter will agree to the setting aside of the sale, he, the purchaser, will save the creditor harmless from all loss which he may sustain by reason of setting the sale aside and having the property again offered. Held, such contract is not per se a fraud upon the due administration of justice, and, unless such fact is made to appear, it is binding upon and enforceable against the purchaser.

8. If a married woman directly or indirectly convey her separate real property to her husband upon a consideration not deemed valuable in law, this is void as to her creditors whose debts shall have been contracted at the time it was made, if such creditors had the right, while the land was hers, to subject it or its rents and profits to the payment of their debts. As against existing creditors such voluntary conveyance is conclusively presumed to be fraudulent in law.

9. The creditor is not compelled to go against the land as the land of the husband, because he also excuted the contract of indemnity on which the suit is brought.

(Syllabus by the Court.)

Appeal from circuit court, Jefferson county.

Bill by Henry Wick and others, partners as Henry Wick & Co., against Charles L. Dawson, executor of A. M. Harmau, deceased, and Ida W. Dawson, on a contract of indemnity. From, a judgment for defendants, plaintiffs appeal. Reversed.

Forrest W. Brown, for appellants.

George Baylor, for appellees.

HOLT, P. On appeal from final decree of the circuit court of Jefferson county, dismissing plaintiffs' bill on demurrer, and refusing to permit a third amended bill to be filed. The bill seeks to subject certain real estate situate in this state, in the county of Jefferson, as the separate property of Ida W. Dawson, the wife of defendant Charles L. Dawson, to the payment of the damages resulting from the breach of the following contract which she had executed at Cleveland, Ohio, as the surety of her husband: "The Society for Savings vs. Nathaniel D. Moore, et al. Agreement. The real estate described in the petition in this case having been advertised and sold to the undersigned, Charles L. Dawson, for forty-seven thousand ($47,000) dollars, and the said Dawson desiring to have the sale set aside, and the property offered again for sale by the sheriff, and the defendants, Henry Wick & Co., objecting to such resale, it is agreed by the undersigned, Charles

[24 S.E. 588]

L. Dawson and Ida W. Dawson, his wife, that in consideration of the defendants (Wicks) consenting that said sale may be set aside, and the property again offered, that they, the said Charles L. Dawson and Ida W. Dawson, will indemnify said Wicks and save them harmless from all loss which they may sustain by reason of setting said sale aside, and having the property again offered; and will pay to said Wicks whatever difference there may be in the amount which they would now realize if the present sale were confirmed and the amount bid paid, and what they may hereafter realize upon a resale of the property, so that said Wicks will not lose anything by consent to have said property again offered. Charles L. Dawson, Executor of Estate A. M. Harman, Deceased. Ida W. Dawson. Cleveland, O., May 11, 1889." Plaintiffs claim that upon the case as made by this bill as amended, and by the third amended bill which the court refused to permit them to file, they were entitled to relief upon three distinct grounds: (1) A decree against Ida W. Dawson, it being an Ohio contract, which authorizes such a decree. (2) To set aside as voluntary the conveyance of the land to her husband, and the conveyance by Dawson to the pendente lite purchaser. (3) To a discovery of the personal estate of Mrs. Ida W. Dawson. (4) It is also contended that, conceding this contract to bind defendant Charles L. Dawson as his personal contract, it is joint, and, one of the parties executing it being a married woman, and it being necessary in this state, at the time this suit was brought, to sue in equity as to the separata estate of such married woman, the court, in order to avoid needless multiplicity of suits, will go on to a complete adjudication, giving relief against both. 1 Pom. Eq. Jur. § 181; U. S. v. Union Pac. Ry. Co., 160 U. S. 1-52, 16 Sup. Ct 190.

It is contended on the part of defendants that this contract, made by a married woman in the state of...

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18 practice notes
  • Hall v. McLuckey, No. 779
    • United States
    • Supreme Court of West Virginia
    • 29 May 1951
    ...also contain prayers for the discovery of facts which are essential to the relief prayed for in the bill.' Pt. 3, Syl., Wick v. Dawson, 42 W.Va. 43, 24 S.E. 4. 'Every estoppel, since it precludes one from alleging the truth, must be certain to every intent and is not to be taken by argument......
  • In Re Estate Of Elizabeth E. Fox, (No. 9999)
    • United States
    • Supreme Court of West Virginia
    • 18 May 1948
    ...State govern in all cases instituted in the courts of West Virginia. Wood v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294; Wick v. Dawson, 42 W. Va. 43, 24 S. E. 587; Dulin v. McCaw, 39 W. Va. 721, 731, 20 S. E. 681. At common law the testimony of parties to the record and parties having a dir......
  • Wood v. Shrewsbury, (No. 8352)
    • United States
    • Supreme Court of West Virginia
    • 9 June 1936
    ...includes the mode of proceeding, the form of the judgment or decree, and the methods of carrying them into execution." Wick v. Dawson, 42 W. Va. 43, 24 S. E. 587, 588. Consult: Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681; 12 Corpus Juris, p. 483; 5 Ruling Case Law, p. 1042; Story on the Con......
  • In Re Fox' Estate., No. 9999.
    • United States
    • Supreme Court of West Virginia
    • 18 May 1948
    ...this State govern in all cases instituted in the courts of West Virginia. Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Wick v Dawson, 42 W.Va. 43, 24 S.E. 587; Dulin v. McCaw, 39 W.Va. 721, 731, 20 S.E. 681. At common law the testimony of parties to the record and parties having a direc......
  • Request a trial to view additional results
18 cases
  • Hall v. McLuckey, No. 779
    • United States
    • Supreme Court of West Virginia
    • 29 May 1951
    ...also contain prayers for the discovery of facts which are essential to the relief prayed for in the bill.' Pt. 3, Syl., Wick v. Dawson, 42 W.Va. 43, 24 S.E. 4. 'Every estoppel, since it precludes one from alleging the truth, must be certain to every intent and is not to be taken by argument......
  • In Re Estate Of Elizabeth E. Fox, (No. 9999)
    • United States
    • Supreme Court of West Virginia
    • 18 May 1948
    ...State govern in all cases instituted in the courts of West Virginia. Wood v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294; Wick v. Dawson, 42 W. Va. 43, 24 S. E. 587; Dulin v. McCaw, 39 W. Va. 721, 731, 20 S. E. 681. At common law the testimony of parties to the record and parties having a dir......
  • Wood v. Shrewsbury, (No. 8352)
    • United States
    • Supreme Court of West Virginia
    • 9 June 1936
    ...includes the mode of proceeding, the form of the judgment or decree, and the methods of carrying them into execution." Wick v. Dawson, 42 W. Va. 43, 24 S. E. 587, 588. Consult: Dulin v. McCaw, 39 W. Va. 721, 20 S. E. 681; 12 Corpus Juris, p. 483; 5 Ruling Case Law, p. 1042; Story on the Con......
  • In Re Fox' Estate., No. 9999.
    • United States
    • Supreme Court of West Virginia
    • 18 May 1948
    ...this State govern in all cases instituted in the courts of West Virginia. Wood v. Shrewsbury, 117 W.Va. 569, 186 S.E. 294; Wick v Dawson, 42 W.Va. 43, 24 S.E. 587; Dulin v. McCaw, 39 W.Va. 721, 731, 20 S.E. 681. At common law the testimony of parties to the record and parties having a direc......
  • Request a trial to view additional results

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