Wood et al. v. Hakmison et al.
| Decision Date | 30 November 1895 |
| Citation | 41 W.Va. 376 |
| Court | West Virginia Supreme Court |
| Parties | Wood et al. v. Hakmison et al. |
Interlocutory Decree Appeal.
An interlocutory decree that is appealable as one adjudicating the principles of the cause is one which adjudicates, not some, but all the questions raised in the pleadings or otherwise, and so far adjudicates that it determines the principles and rules by which relief is to be administered to the parties, so that it is only necessary to apply such principles and rules to the facts in order to decree the relative rights of the parties in the subject-matter of the suit.
Fraudulent Conveyance Husband and Wife Fair Consideration.
Where a conveyance is made from husband to wife, and it is attacked by his creditors as fraudulent, the burden is on her to show that she paid a fair consideration out of her separate estate; and, having shown this, the burden then rests on the creditors to show fraud, but it requires less evidence to show it than if the transaction were between strangers.
Fraudulent Conveyance Husband and Wife Purchaser for Value.
A husband transfers to his wife, owning separate estate, real estate charged with liens, in consideration that she pay the liens, and she acts in entirely good faith, and free of fraudulent design as to his creditors, and without notice of fraudulent intent on his part. She is a purchaser for valuable consideration, without notice, and as such protected against his creditors by section 1, chapter 74, Code. Owing to their relations, such transaction must be scanned closely, and it must appear clearly that she is free from fraud, and that any payments made under the transfer on liens were not from the estate of the husband,
Fraudulent Conveyance Inadequacy of Price.
Where fraudulent intent against creditors is sought to be made out against a transfer of his property by a debtor on the sole ground of inadequacy, without any other element tending to show fraud, the inadequacy must be so great as fairly to induce the belief of fraudulent intent.
J. G. McCluer for appellant, cited 67 Ind. 560; 28 La. nn. 454; 31 Mo. 62; 1 Conn. 525; 52 Conn. 512; 101 IT. S. 225; 3 John's C. H. (1ST. Y.) 501; 11 Mass. 421; 52 111. 18 6 8 Wheaton (TJ. S.) 229; 11 Wheaton (U. S.) 199; 26 Gratt. 354; 27 W. Ya. 677; 29 Gratt. 628; 56 la. 366; 60 Ga. 82; 87 Pa. St. 510; 36 Kan. 610; 122 IT. S. 496; 31 Fed. Rep. 588; 34 Kan. 32; 72 Ga. 101; 29 Gratt. 628; 28 Gratt. 49; 38 Ohio, 406; 97 111. 93; 29 111. 444; 31 Ark. 554; Am. & Eng. Enc. of Law, Yol. 8, p. 656, § 6, 7; Warvelle on Vendors, Vol. 2, p. 618, § 16; 4 Rand. 282; 3 Gratt. 68; 14 W. Ya. 66, 3d syl.; 93 N. Y. 124; Cowp. R. 432; 10 W. Ya. 87; Wait on Fraudulent Conveyances, § 369; 19 X. Y. 417; 17 W. Va. 718, p'ts 7, 8, syl.; 29 111. 444; 5 Me. 471; 22 S. C. 512; 24 Kan. 780; 22 W. Va. 356; 8 Wheat. (IT. S.) 229; 8 Wall. (IT. S.) 370; 7 Allen (Miss.) 146; 3 Wash. 546; 14 Me. 370; 3 Grant. (Pa.) 237; 11 Gratt. 477; 3 Dana (Ky.) 439; 91 IT. S. 485; 29 W. Va. 521; 39 K Y. 317; 29 Gratt. 628, 629; Phillips, Ev. 425, 625; 8 Term Rep. 474; 3 S. & R, 355; 4 Dal. 152; 11 Pet. 199; 2 Lomax, 441; 29 W. Ya. 453; 39 W, Va. 325; 2 Russ. 170; Win's Exr's (7 Eng. Ed.) 1794; 6 Sims, 504; 20 Deav. (Eng.) 356, 365, 366; 12 Phila. (Pa.) 88; 1 Den. (X. Y.) 547. "
Merrick & Smith for appellees: The decree of Dec. 4, 1894, does not adjudiccde all the questions arising in the cause. It is not appealable. 27 W. Va 215; 29 W. Ya. 131.
Creditors should sue. -72 Am. Dec. 203; 62 Am. Dec. 545; 64 Am. Dec. 169-175; 8 Am. & Eng. Enc. Law, 774,
When suit may be brought -39 W. Ya. 320.
The administrators are proper partus. 15 W. Va. 314. Mrs. Harmison is not a. competent witness in this case. Code, e. 130, s. 23; 14 W. Va. 88; 25 W. Va. 587; 32 W. Va. 20.
Mayberrifs opinion about the assets made out from sale book not competent evidence. 2\ W. Va, 301; 37 W. Va. 4045; 1 Greenl. Ev. 117, 118, 82, 91.
A person largely indebted makes a voluntary deed for all his real estate leaving an insufficient amount to pay his debts, thus imposing on his creditors the risk of losing their debts. Such deed will beheld to h/ive been executed with an actual fraudulent intent and both existing and subsequent creditors may have it set aside as fraudulent. 30 W. Ya. 620, 647, 650, 655; 10 W. Ya. 87, 111, 112; 30 W. Ya. 598-9; 29 W. Ya. 395; 22 W. Ya. 586, 594. No resulting trust to the wife for money advanced to husband. 13 W. Ya. 55; 24 W. Ya. 410; 29 W. Ya. 452; 32 W. Ya. 14, 210, 451.
A transfer from husband to wife is open to suspicion. 29 W. Ya. 453.
The burden is upon the wife to establish her right as against creditors. 11 W. Ya. 122; 22 W. Ya. 673; 23 W. Ya. 499; 24 W. Ya. 203; 27 W. Ya. 206; 29 W. Ya. 453; 39 W. Ya. 325.
Mrs. Harmison assented to the purchase of new goods, after her husband's death knowing that the proceeds would go into her pocket. She is personally liable. 7 Am. & Eng. Enc. Law, 342 and note 1; 23 Ohio St. 231; 11 Ser. & E. (Pa.) 41; 83 F. C. 90; 3 S. E. Rep. 160 (Ga.); 2 So. Hep. 501; 8 Conn. 587; 20 N. Y. 437; 11 La. An. 472.
The bill in this case exhibited in the Circuit Court of Cabell county by Wood, Brown & Co. and other firms against Emma L. Harmison and others, alleged among other things, that the firm of Harmison & Hill was indebted to the plaintiffs; that Harmison & Hill had been composed of Frank J. Harmison, deceased, and A. E. Hill, deceased; that Frank J. Harmison by his will gave all his property to his widow, Emma L. Harmison; that when Harmison died the business of the firm of Harmison & Hill was going on under the control of A. E. Hill, as manager, and the business was, by permission of Mrs. Harmison, continued for some time after Harmison's death; that the goods sold by the plaintiffs to Harmison & Hill before Harmison's death were sold on the credit of the firm as then constituted, and those sold after his death were sold under the faith inspired by certain statements of Hill that Mrs. Harmison, who had large means, was then a partner, and that fhe was in fact such partner; that Hill had since died, leaving no estate, and that, as claimed by Mrs. Harmison, her husband left no estate at his death; that Harmison, in life, purchased valuable real estate, and paid large sums thereon, and bad conveyed it to his wife, Emma L. Harmison, subject to some unpaid.purchase money due from Harmison; that when he so conveyed said real estate to his wife, said Frank J. Harmison was insane, and incapable of executing such conveyances, and that she had procured such conveyances by taking advantage of his condition, and that the conveyances wTere void as to said creditors for that reason, and also because without valuable consideration, and taken by her with intent to hinder, delay, and defraud creditors, and that the real estate was liable to their debts; that there were some assets in the hands of Hill's administrator, as representative of a surviving partner, arising from assets of the firm of Harmison & Hill. And the prayer of the bill was that the plaintiffs' debts be decreed them, that Emma L. Harmison be decreed liable therefor, that the accounts of the administrators of Harmison and of Hill be settled, that the real estate conveyed by Harmison to his wife be charged with the debts, and the conveyances to her held void and annulled as to them, and for general relief.
A decree wras pronounced which declares fraudulent and void the transfers of real estate of Frank J. Harmison to his wife, to the extent of certain sums which he had paid in the purchase of the estate, so far as the transfer affected debts of the firm of Harmison & Hill incurred in the lifetime of Frank J. Harmison; and the decree declares that the creditors, to that extent, have right to charge the property in Emma L. Ilarmison's hands. The decree absolves her from personal liability for debts contracted by Hill, the surviving partner of Harmison & Hill, after Ilarmison's death. The decree then declares that in order to make a final decree, a reference was necessary, and it referred the case to a commissioner to ascertain and report what debts Frank J. Harmison owed, and what debts Harmison & Hill owed, at the dates of the conveyances by Harmison to his wife; what portion of the debts yet remained unpaid, what portions of the debts existed when Harmison died, and what portion had been incurred since his death; what liens for purchase money yet remained on the said realty and to settle the accounts of A. E. Hill, administrator.
As a prerequisite to the decision of the matters brought before us for decision, we must determine whether we have jurisdiction to decide them, as this question is raised. Is the decree appealed from such a decree as will warrant an appeal? At one time in Virginia only a final decree would support an appeal. To this rule there were objections. It was difficult to say what were final decrees. And further why, after a decree settling the real principles of the case, leaving nothing to be done but to execute it, let it go on, at cost of time and money, and, after all was clone, reverse all? Would it not be better to at once test that decree by appeal? But it would not do to allow an appeal from any decree or order just because it settled something in the case, though important, leaving important subjects yet untouched; for that would greatly delay the lower court, by repeated appeals, and fill the appellate court with innumerable appeals. In the Code of 1849, and by prior legislation, the field of appeals was considerably enlarged by allowing them to certain decrees and orders, not final, but interlocutory in character, mentioning certain specific ones, and adding any decree or order "adjudicating the principles of the cause." Our Code, in chapter 135, section 1, has enlarged upon the Virginia Code, and continued the appealability of "decree or order adjudicating the principles of the cause." No...
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