Fink, Brother & Co. v. Denny

Burks, J., delivered the opinion of the court. A doubt intimated by some of the judges on first looking into the record, whether this court has jurisdiction of the present appeal, caused us to examine the question, and the examination has satisfied us that we have jurisdiction. Though the bill was filed to set aside several deeds on the ground of alleged fraud, and subject the lands thereby conveyed to the debt of the complainants, the suit is not-in the category of “ controversies concerning the title or boundaries of land ” within the meaning of the Constitution of the State (Art. 6, § 2). In Umbarger and Wife v. Watts and others, 25 Gratt. 167, the bill was filed to enforce a judgment against land, and the-defendants in their answer claimed title under alienation before the judgment was obtained, and yet it was held by this court that this was not a “ controversy concerning the-the title or boundaries of land ” in the sense in which the phrase is used in the constitution. The unanimous decision of this court in Pope v. Hale (not reported), at Bichmond last winter, was to the same effect. In such a case, it is the debt which is the matter in controversy, and, as a general rule, it is the amount claimed by the complainant in the court below, which determines [667] the jurisdiction here, when he is the appellant. Harman v. City of Lynchburg, 33 Gratt. 37, and cases there cited. The amount of the debt claimed by the appellants in their bill is much less than five hundred dollars. If this were their only claim, the appeal would be dismissed as matter of course. But in the progress of the cause, Crum’s administrator filed his petition, asserting a debt against the defendant Joseph S. Denny, and praying that it might be allowed and payment enforced against the same property pursued by the complainants. It appears by the record that this debt was afterwards assigned to the appellants for value and without recourse, and is recognized by the decree appealed from as owing to the appellants as assignees. This, added to the debt of the appellants claimed in the bill, makes a sum exceeding the amount required to-give this court jurisdiction. But for the assignment, each creditor having a separate and distinct demand less in amount than $500, neither could have appealed separately, nor, under the decision in Umbarger and Wife v. Watts and others, could they have united their claims so as to give the court jurisdiction as to both or either. We think, however, the assignment makes the case different. If the appellants had acquired the debt from Crum’s administrator before they filed their bill and asserted their claim to it in the bill, together with the debt due them in their own right,, there could be no doubt, we apprehend, that the two debts together would have constituted “the matter” and the aggregate“the amount” in controversy. We do not think the circumstance that the assignment was made after the bill was filed, but before the decree, alters the case. This is on the assumption that the assignment was bona fide. If it was merely colorable in order to give the court jurisdiction, and that was made to appear, jurisdiction would be declined: for jurisdiction can no more be conferred than it can be taken away by improper devices of parties. Hansbrough and Wife v. Stinnett, 22 Gratt. 593. [668] The assignment purports on its face to be “for value received,” seems never to have been questioned, was recognized by the commissioner in his report and by the court in its decree, and, though made only two weeks before the decree, we are bound to presume, in the absence of proof to the contrary, that it was made in good faith. Thompson v. Butter, 95 U. S. (5 Otto), 694. As to the merits of the case. It is difficult to perceive how the circuit court could, upon this record, have reached the conclusion stated in its decree, that the deed of June 26, 1877, for the benefit of Mrs. Denny, was upon a consideration deemed valuable in law, and that, as to the debts of the complainants, it was valid and could not be set aside or avoided. The bill charges that the deed was voluntary and made with intent to hinder, delay, and defraud the complainants and other creditors. The joint answer of Denny and wife set up a good defence, if the averments had been sustained by the requisite proof. But there is absolutely no proof. The answer is not' evidence of the statements it contains, as against the complainants. It is not responsive, but sets up affirmative matter by way of avoidance. The bill is just such a bill as was filed in Blow v. Maynard, 2 Leigh, 30, and the answer is similar to the answer of the wife (Mrs. Lawrence) in that case, so far as the relinquishment of the wife’s interest was relied on as the consideration for the settlement under an alleged agreement between the husband and wife. The answer was not regarded as evidence for the respondent. In his opinion, Judge Carr said, “every post-nuptial settlement, where the settler is indebted, is as against his creditors, fraudulent and void; and every settlement will be taken to be voluntary, unless those claiming under it can show that it was made for valuable consideration. The charge of fraud in the deed, made by the creditor here, is the common charge which every credi [669] tor would make under such circumstances; and there is no discovery sought of Mrs. Lawrence by way of evidence as-to the deed. If, under such circumstances, that defendant, charged with fraud in accepting and holding under a voluntary deed, could, by her own answer, supply proof of a contract, and the execution of it, by which she establishes a valuable consideration for the deed, then in truth it may be said that, to require proof of a consideration at all is a mere farce, and the statute of frauds (calling for a written contract) a dead letter. But there is no such law; the defendant, who, in his answer, sets up a contract by way of defence, must establish it by legal and disinterested evidence.” The deposition of the husband, if it could be read, proves nothing to the point. But it is excepted to and is clearly illegal evidence. William and Mary College v. Powell and others, 12 Gratt. 372, 382, 383. The deeds furnish no evidence of the alleged consideration. If the deed of June 14th, 1875, in which Mrs. Denny relinquished her dower right in the land thereby conveyed had contained a recital of an agreement of her husband to settle other property to her use in consideration of such relinquishment, then the deed of settlement subsequently made would be presumed to have been in fulfilment of that agreement. A like presumption would arise if the deeds had been contemporaneous or about the same time, so as to constitute one transaction, or if the relinquishment and settlement were by the same instrument, or if the deed of settlement had been first made purporting on its face to be in consideration of her relinquishment in the other deed, and such deed of relinquishment had followed the settlement. But where the relinquishment of the wife’s interest has been first made by deed containing no recital of an agreement to make a settlement in consideration thereof, and a subsequent settlement, made two years afterwards, as [670] in this case, is sought to be set up, there must be be distinct proof of the previous agreement. William and Mary College v. Powell and others, supra; Blow v. Mayard, supra; Price v. Thrash, 30 Gratt. 515; Campbell v. Bowles, Id. 652. It is argued by Mrs. Denny’s counsel that her relinquishment by the deed of settlement, in behalf of the creditors therein secured, of her interest in the property conveyed by that deed, is a valuable consideration, to the extent of the interest parted with by her, for the settlement under that deed, and that such consideration will be implied. The plain answer to this argument is, that no such consideration, but, on the contrary, another and a distinct one, is set up in her answer. She there says that the relinquishment of her interest in the land conveyed to her son two years previous to the settlement, and the sum of eight hundred dollars, her separate property, lent by her to her husband, constituted the consideration for the settlement. The implication which might perhaps otherwise be raided in her behalf is repelled by the express claim in her answer, on the principle expressumfacit cessare taciturn. The decree of the circuit court is plainly erroneous, and must be reversed, and the cause remanded with directions to subject the property conveyed by the deed of June 26, 1877, to the payment first of the debts secured thereby and then of the debts of the complainants. Decree reversed and cause remanded.