Winston v. Starke

• Decision Date: 30 April 1855
• Citation: 53 Va. 317
• Court: Virginia Supreme Court
• Parties: WINSTON v. STARKE & als.

53 Va. 317

WINSTON v. STARKE & als.

Supreme Court of Appeals of Virginia.

April 30, 1855

(Absent ALLEN, P.)

In a suit between S, trustee in a deed for the wife of the grantor, and B, a creditor of the grantor, the deed is held to be fraudulent to the amount of one thousand four hundred and eighty-three dollars; much more than sufficient to pay B's debt. W, another judgment creditor of the grantor files a bill, in which he states his debt and the decree in the former suit; and asks that S may be decreed to pay plaintiff's debt out of the balance remaining in his hands for which the deed was declared fraudulent: And he files a copy of the record in the first case. S answers denying that the deed was fraudulent, and objecting to the record of the former suit as evidence. HELD:

1. If the bill is to be considered as charging fraud in the deed the answer puts that fact in issue; and the plaintiff not having been a party or privy in the first suit, the record is not competent evidence.

2. The bill does not charge fraud in the deed, but relies upon the first suit as a proceeding of which plaintiff is entitled to the benefit. The case does not come within the principles upon which proceedings in rem are held to bind all the world.

3. It is not the duty of the court to advise a party as to the sufficiency of his evidence; as to that he must judge for himself, before going to a hearing of his cause.

4. If a party has doubt about the admissibility of his proof when objected to, he may bring the question before the court, and have it decided before going to a hearing.

This was a suit in equity in the Circuit court of Hanover county, instituted by Philip B. Winston against Joseph Starke and others. The case is stated by Judge SAMUELS in his opinion. The Circuit court dismissed the bill: And Winston thereupon applied to this court for an appeal, which was allowed.

Lyons, for the appellant.

Griswold and Claiborne, for the appellees.

SAMUELS J.

The bill in this case in substance alleges, that complainant has obtained a judgment for debt, interest and costs, and issued a writ of fieri facias thereon against William L. White. That about the time of or shortly after the rendition of complainant's judgment, White took the benefit of the insolvent laws at the suit of other creditors. That before White's insolvency, he had made a conveyance to Joseph Starke, as trustee for the benefit of White's wife and children. That this conveyance was afterwards assailed in the Circuit court of Hanover, as fraudulent and void, and that it was so adjudged to be by the decree of that court to the amount of one thousand four hundred and eighty-three dollars and ninety-six cents. That by a subsequent decree, Starke the trustee was directed to pay Ira L. Bowles, the creditor who had so assailed the deed, the sum of seven hundred and nineteen dollars, and interest, parcel of the sum of one thousand four hundred and eighty-three dollars and ninety-six cents, leaving the residue thereof liable for White's debts, of which that due complainant had priority; the residue, however, being more than enough to pay complainant's debt. The bill refers to the papers and proceedings in the case of Bowles v. Starke, (meaning Starke v. Bowles, ) as evidence.

Complainant also filed with his bill abstracts from the record in the case of Starke v. Bowles, also copies of the deed of trust from White to Starke, as trustee, and of White's insolvent papers.

Starke filed an answer to Winston's bill. He denies that the deed of trust was tainted with fraud; and he also objects to the proceedings had in the case of Starke v. Bowles, as evidence for any purpose in this suit.

If the bill in this case could be regarded as tendering an issue on the fact of fraud, the answer makes that issue by denying the fraud; and this would impose on the complainant the necessity of proving his bill.

The only proof offered by complainant on this issue is the record in the case of Starke...