Wildasin v. Long
| Decision Date | 22 April 1913 |
| Citation | 82 S.E. 205,74 W.Va. 583 |
| Parties | WILDASIN v. LONG ET AL. |
| Court | West Virginia Supreme Court |
On Rehearing, June 23, 1914.
Syllabus by the Court.
A suit to set aside a fraudulent conveyance, under section 2 chapter 133, Code 1906, instituted by a creditor at large for a legal demand not due, cannot be maintained.
When the bill is filed in such suit the time of the suit relates back to the date of the valid writ, though not served.
When after such suit is brought, the debt then due is paid off and discharged by judgment and execution or otherwise, the questions arising on such bill become moot and the bill is properly dismissed.
If such bill shows on its face in connection with the summons, which being a part of the record may be looked to on demurrer, that the debt due at the time of the suit had been paid off at the time the bill was filed, the demurrer is well founded and should be sustained, and the bill not being susceptible of amendment is properly dismissed on demurrer.
Appeal from Circuit Court, Mercer County.
Bill by C. E. Wildasin against J. A. Long and others. Decree for defendants, and plaintiff appeals. Modified and affirmed.
Randolph Henry, of Princeton, for appellant.
Woods & Martin, of Princeton, for appellees.
This is a suit by plaintiff, a creditor of J. A. Long, J. S. Long and J. P. Long, under section 2, chapter 133, and section 2 chapter 74, Code 1906, against J. A. Long, H. V. Long, his wife, and Louis Long, a son, to set aside as fraudulent, a deed made July 27, 1907, recorded June 12, 1908, by J. A Long to H. V. Long, for the purported consideration of fifteen hundred dollars, acknowledged as paid, a tract of ninety-two acres of land in Mercer County, described by metes and bounds, and as having been the same land conveyed to J. A. Long by D. N. Neal, by deed dated September 12, 1904, and to subject the same, or the interest of said J. A. Long therein, alleged to be a half undivided interest, to the payment of plaintiff's debt. While the deed last referred to purports to convey the whole estate in the land, the bill alleges, and the deed from Neal shows, the land was conveyed to J. A. Long and H. V. Long, his wife, jointly.
The debt with which plaintiff sought to charge the land was a balance of about $483.35, purchase money, for a saw mill sold J. A. Long and his son, W. J. Long, in March, 1907. After sale and delivery of the mill, and considerable use of it by the purchasers, and suit by plaintiff against them for the balance due, a new contract in writing was entered into, dated February 3, 1908, consummated after considerable delay by the Longs, about March 14, 1908, whereby the property was to be and was in fact passed into the possession of J. P. Long, J. S. Long, and N.H. Long, sons of J. A. Long, and brothers of W. J. Long, as purchasers thereof, said purchasers to pay the balance due thereon; and the contract recites that in consideration of $500.00 paid and to be paid, as follows: $100.00, cash, and $100.00 respectively in three, six, nine and twelve months, evidenced by negotiable notes of even date therewith, and endorsed by said J. A. Long, as surety, the plaintiff thereby bargained, sold, assigned, transferred and delivered said property to the said J. P., J. S., and N.H. Long, retaining the legal title thereto as further security for the purchase money. The bill alleges as the fact is that the cash payment called for was not paid, but a sixty day note, endorsed as the other notes were, by J. A. Long, was accepted, in a final effort to close the sale, in lieu of the cash payment.
The original process in this suit tested July 10, 1908, returnable the first Monday in August following, when the bill was filed, was never executed, and a new or alias summons sued out and tested October 1, 1908, and made returnable to November rules following, was executed on all defendants, October 26, 1908.
After plaintiff took his testimony, defendants took depositions, beginning November 16, and ending December 7, 1909, but entered no other appearance until December 2, 1909, when defendants, J. A. Long and H. V. Long appeared and filed their separate demurrers and answers and took a rule for costs, the court staying all further proceedings until this rule should be complied with, which was done December 16, 1909. The defendant Louis Long entered no appearance and as to him the bill was taken for confessed.
By the final decree of May 18, 1910, appealed from, the court below was of opinion upon the demurrer that it should be sustained, and upon the merits, that plaintiff was not entitled to the relief prayed for, and accordingly it was adjudged, ordered and decreed that the demurrer be sustained, and on the merits that the bill be dismissed, without prejudice to plaintiff, by reason of sustaining the demurrer, to institute any other proper action, as he might be advised, on the notes sued on.
One of the propositions relied on by appellees, and which should first be disposed of is that the suit was prematurely brought, for if sustained, the decree below must be affirmed, upon the rules and principles of Frye v. Miley, 54 W.Va. 324, 46 S.E. 135. This question if not presented by the demurrer arises on the merits, by reference to the original and alias writs. The facts are, that on July 10, 1908, the date of the teste of the original writ, the first two of the five notes sued for were past due, and on which, on June 1, 1908, suit had been brought, and on July 8, two days before the teste of the writ, after much delay by defendants, judgment was pronounced by the justice, and on which execution issued and was levied on said mill, and on July 25, 1908, the same was sold, and purchased by plaintiff for sufficient, after payment of costs, to pay the judgment, which was done, and to leave a balance of $27.47 to apply on the third note falling due August 3, 1908, which happened to be the rule day to which the original writ was returnable, and at which time the bill was filed. The original writ, however, failed of service and an alias was necessary and before it issued, in October, 1908, the six months note fell due.
The rule of Frye v. Miley is, that a suit to set aside a fraudulent conveyance, under section 2, chapter 133, Code 1906, instituted by a creditor at large for a legal demand not due cannot be sustained. Clearly the present suit was well founded on the notes due and unpaid at the date of the teste of the original writ; but before the return day of that writ, and the filing of the bill, as the bill by reference to the writ clearly shows, that debt had been reduced to judgment and satisfied on execution. As to that part of the debt, therefore, the cause of...
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