CHARLESTON.

#### Bank of Piedmont *v.*Bowman *et al.*

Submitted June 15, 1894.

Decided December 15, 1894.

FRAUDULENT CONVEYANCE.

A case in which the court refuses to set aside a conveyance for fraud.

W. B. Maxwell for appellant:

*I.*— Depositions *must be held open until the expiration of the*
      *623
      *hours named in the notice, unless the opposite party sooner appear to cross examine the ic-itnesses.*— 4 Muuf. 80.

*II.*— Badges *of fraud;*— Burden *of proof;*— Embarrassment *of grantor;*— Pendency *of, or expectation of suit;*— Concealment *of deed;*— Misrecital *in deed §c.*— 36 *W.*Ya. 649 ; 34 W. Ya. 696; 35 *W.*Ya. 547; 35 \V. Ya. 719; 35 W. Ya. 754; 37 W. Ya. 3; Id. 572; Id. 675; Id. 687; Bump. Fraud. Con., 56, 31 to 46, 51, 54.

P. J. Ckosan for appellee:

*I.*— Peed *absolute, shown to be a mortgage.*— 16 W. Ya. 443 ; 12 W. Ya. 247; 22 W. Ya. 2.

*II.*— Notice *to take Depositions:*— Code, c. 130, s. 35 ; 4 Minor, p’t 2, 1490.

*III.*— Sendee *of Notice on Corporation.*— Code, c. 124, s. 7; Code, c. 52, s. .18; Code, c. 53, s. 59, 61.

*IY.*— Bight *to cross-examine.*— 2 Bart. Ch’y Pr. 746; 4 Mairf. 80.

Brannon, Pkesident :

This was a suit in equity in the Circuit Court of Tucker county, brought by the Bank of Piedmont against *A.*H. Bowman and others, in which the plaintiff alleged, that it had recovered a judgment against A. H. Bowman, E. B. Stone and W. H. Lipscomb, and that Bowman and Stone had made various fraudulent dispositions of and incum-brances upon their property, and praying that a conveyance by Bowman to one A. M. Goff of two tracts of land containing sixty seven acres and two hundred and thirty two acres respectively lying in Tucker county, and a deed of trust for three thousand six hundred and fifty six dollars and ten cents on other property, given by Bowman to secure Goff, and a judgment confessed by Bowman in- favor of Goff for a debt be set aside, and that Stone be required to bring to light from concealment certain notes and accounts, which he was suppressing in fraud of creditors. Owing to decrees in a case of the First National Bank of Fairmont against A. II. Bowmau and others in Preston county, mentioned in the record, the matters of the deed of trust and judgment have been eliminated from this case, *624and it is only necessary for us to pass on the conveyance of the two tracts of sixty seven and two hundred and thirty two acres of land in Tucker county and the notes and accounts, which Stone is charged with concealing from creditors.

Now, then, as to the tracts of sixty seven and two hundred and thirty two acres of land conveyed by Bowman to Goff. The debt, which the plaintiff would assert against these lands, originated on November 8, 1887. Bowman sold these lands to one John J. Cline as far back in time as January 1, 1888, as shown by a written contract acknowledged and duly recorded January 81, 1884. Thus the fact appears, and it is one of decisive force in the case, that long before this debt arose these lands had been sold by Bowman ; and I will add as showing the good faith of this sale,that none of the debts referred to in the bill which in later years embarassed and ruined Bowman, existed at the date of this sale, and the bill states that at the date of November 8, 1887, Bowman was worth thirty thousand dollars and was indebted only in a very small amount. So it is clear, that unless on account of something afterwards occurring the right of Cline and any right derivative from it must stand stable against the debt of the Bank of Piedmont.

But it is claimed that something did afterwards occur to render these lands liable to this debt, and that is, as alleged in the bill, that, when Bowman became involved, he managed to induce Cline to surrender his said purchase, and thereupon Bowman in order to defraud creditors conveyed the lands to his son-in-law, Goff, by deed dated December 2, 1887. Cline, who is no relation to the parties, swears, that he applied to Golf for a loan of five hundred dollars to finish payment to Bowman for the land under his contract of purchase of January 1,1883, and Goff demanded security for the loan, and it was agreed that Bowman instead of conveying under that contract to Cline should convey to Goff, and that Goff should hold the laud until Cline should repay the five hundred dollars and that Golf did lend him the money, and he paid it to Bowman in discharge of the purchase-money due him, and Bowman by order of Cline made the deed to Goff. Goff swears the same, and that he had no conversation with Bowman about the loan to Cline or *625about the conveyance of the land to Goff, but bis transaction Avas- wholly with Cline. Thus the conveyance to Goff from BoAvmau created in Goff not an absolute estate in the eyes of equity, but an equitable mortgage to secure Goff his loan with right of redemption in Cline. *Ferguson*v. *Bond, supra,*p. 561 (20 S. E. Rep. 591); *Vangilder*v. *Hoffman,*22 W. Va. 2. BoAvmau had no longer any interest in the land which creditors could subject. Tie had not had since January 1, 1383. If Cline and Goff do not falsify, such is unalterably the state of the case as to these lands. There is not a bit of evidence to contradict them in this matter. Can we arbitrarily reject their evidence, when there is not even a cross-examination to impugn it?

Several Avitnesses Avere examined on the plaintiff’s side, but their evidence only tends to show that Goff was not pecuniarily able to raise money to make this loan and the loan of Bowman of three thousand six hundred and fifty six dollars and ten cents for Avhich the deed of trust and judgment were given. Let us concede,That he was not able to do both, yet he may have been able to lend this five hundred dollars. And if — as I do not think *we*can — avc could look to the case of *Bank*v. *Bowman,*36 W. Va. 655 (14 S. E. Rep. 989) avc Avonld find that debt was never claimed to be wholly a loan by Goff to Bowman, but the larger part from a gift to Goff’s wife by Bowman in years gone by. Anyhow it is clear not only from witnesses for Goff but even from Avitnesses for the bank, that Goff was worth from two thousand dollars to three thousand dollars, was a good farmer, raised and sold cattle, engaged very considerably for years in logging and lumbering, was an active, hardworking, saving man and of honorable character. Why is it improbable that he made the loan of five hundred dollars ? We have positive evidence by íavo undisputed Avitnesses, that he did make this specific loan ; and his state and condition as proven by other witnesses lend corroboration to their evidence. A circumstauce cited against the fairness of the transaction is, that Avheu Cline paid this purchase-money debt to BoAvmau with only five hundred dollars there was due six hundred and twenty one dollars ; but this is not certain, for avc do not know as a matter of fact, that *626several payments bad not reduced it. It is said that though this deed was made Decemebr 2, 1887, it was not put on record till February 27, 1888. Sometimes withholding a deed from record may be a circumstance of fraud, but it would seem rather the reverse here, for we would suppose, if sedate fraud was intended, the party would hasten to put it on record. Failure to record is often owing to mere neglect and procrastination. Bowman’s deposition is not in the record. It may be that hi urging payment of this debt by Cline he intended to get it out of the way of creditors, but that does not convict Goff of fraud in lending Cline money to pay, or Cline in paying it to Bowman. The fact that the deed from Bowman to Goff was only a mortgage is confirmed by a writing found in the record, which both Cline and Goff' say was executed, dated March 27, 1888, by which Goff sold this land to Cline for five hundred dollars, and was to deed the land to Cline on payment of purchase-money. This simply attests in-writing what had been orally agreed. The relationship of Bowman and Goff does call for explanation as’argued, but the evidence of a disinterested witness (Cline) supported by Goff’s furnished fair explanation. Were it simply a conveyance by Bowman to Goff, it would wear a different hue ; hut it is a loan by Goff to Cline to pay Bowman purchase-money under a sale from Bowman to Cline years before any trouble — a fact not disputed, nor capable of disputation. So I conclude that the court below did not err in refusing to hold the land liable.

It is argued, but not apparently with confidence, that the court erred in the dismissal of the bill in this further respect; that the bill charges that Stone had carried on the mercantile business and had large sums of money due him upon notes and accounts, which he was concealing from creditors, amounting to about six thousand dollars, and, as it was taken for confessed by Stone, the bill as to this matter should not have been dismissed. The bill was too indefinite in this matter to warrant a decree upon it taken alone. What sort of a decree could have been pronounced upon it? I doubt whether‘there could-have been a personal decree against Stone for the specific sum of six *627thousand dollars; but a personal money decree is not the one aimed at, or which would be warranted under the bill, as it contemplates an ascertainment of debtors of Stone, and pursuit of funds in their hands, as it prayed that Stone turn over the notes and- accounts, that they might be collected. This being so, there is no basis for such a decree. Who are the debtors of Stone, and what amounts do they owe? We know not. There is not a particle of evidence to answer these questions. It is a bill of discovery stopping short of discovery. Why did not the plaintiff compel a discovery ? Why not compel an answer and the production of notes and accounts? It does not even put Stone on the stand to disclose the debts or furnish any evidence.

Another assignment of error is that the witnesses left the place of examination before 6 o’clock p. m., and plaintiff’s counsel had no opportunity to cross-examine them. The notice fixed the hours for taking the depositions between 6. a. m. and 6 p. M. The examination by defendant began at 10 o’clock, a. m., and was concluded at 11:30 a. m., and at 5:35 P. M. plaintiff’s attorney appeai’ed to cross-examine; but the witnesses had gone. A reasonable opportunity was given. The counsel showed no diligence to secure his cross-examination. No excuse for the negligence is given. The court could order a cross-examination had it been asked, if there had been any fair excuse by counsel for not having availed himself of the opportunity of cross-examination. These considerations conduct us to an affirmance of the decree.