Thornton v. Gaar

Lewis, P., delivered the opinion of the court. [316] On the 26th of September, 1882, the appellant, Jackson L. Thornton, executed a bond for $5,064.64, payable on demand to Joseph A. Mansfield, and on the second day of the ensuing October, he executed a deed of trust on a certain tract of land, situate in Greene county, to secure, first, the said bond, and, secondly, all of his other debts. The bill charges that the bond was executed without valuable consideration,- and that the deed of trust was executed with intent to hinder, delay, and defraud the creditors of the grantor. And the prayer of the bill is that the deed be set aside, 'and that the bond be declared void. Thornton and Mansfield, and the trustee in the deed, John M. Shipp, are made defendants to the bill, who severally answered, denying the charge of fraud, and calling for strict proof of the allegations of the bill. Much testimony was taken tending to show that at the time the bond and deed of trust were executed Thornton was financially embarrassed, if not insolvent, and that the bond was not founded upon valuable consideration, but was executed for a tract of land which, more than sixteen years previously, had been given by Mansfield to his daughter, the wife of the said Thornton. There was also evidence tending to show that Mansfield, at the time of the transaction in question, had but little means; that his estate consisted of a small tract of poor and unproductive land, in Orange county,.and a'small amount of personalty, not exceeding in value $500. Thornton was himself examined as witness, and, in the course of his deposition, disclosed what had not been stated in the answers of the defendants, namely, that the bond had been assigned by Mansfield to Mrs. Thornton. The plaintiffs thereupon excepted to his competency as witness in the case, and the exception was sustained by the circuit court. It was also decreed that the bond was void, and that the deed of trust be set aside, and from this decree the defendants appealed. Various errors are assigned in the decree, of which the first [317] is that the circuit court erred in sustaining the exception to Thornton’s competency as a witness. But there is no merit in this objection. His wife, according to his own statement, being the assignee of the bond, and, therefore, interested in the result, he is clearly incompetent as a witness. In this particular the common law has not been altered by statute in this State. Jones v. Degge, 84 Va., 685. Evidence was also taken to prove certain declarations by Thornton after the execution of the deed, to the effect that the bond had been given to cover certain advancements made by Mansfield to his daughter, Mrs. Thornton, the chief of which was the tract of land above mentioned. And the appellants contend that such declarations are not admissible to impeach the deed. As an abstract proposition, this position is well taken, the rule being that upon the trial of the question whether a particular conveyance was made to defend creditors, it is not competent to show the acts or declarations of the «grantor after the conveyance to impair or affect the title of the grantee. Bump, Fraud. Conveyances (2d ed.), 568; Holbrook v. Holbrook 113 Mass., 74; Clements v. Moore, 6 Wall., 299. But the question is of little or no importance in the present case, as there is evidence, independently of Thornton’s declarations, that the bond was voluntary, and the deed fraudulent. The trustee, Shipp, testifies substantially to the same effect, and the circumstances of the case point in the same direction. We are of opinion, however, that upon it appearing that the bond had been assigned to Mrs. Thornton, the circuit court, before decreeing on the merits, ought to have directed that she be made a party to the suit, in order that a complete decree, binding all persons interested in the subject-matter of the suit, might have been rendered. It is true no objection for want of proper parties was taken in the court below. But the rule is well settled that in such a case the objection may be taken by the court at the hearing, or even for the first time by [318] the appellate court. Jameson’s adm’x v. Deshields, 3 Gratt., 4; Lynchburg Iron Co. v. Taylor, 79 Va., 671; Welsh v. Solenberger, 85 Id., 441. The decree will, therefore, be reversed, and the cause remanded to the circuit court, with directions to cause Mrs. Thornton to be brought before the court in order to a final and complete decree, the appellants to pay the costs of this appeal. Decree reversed.