American Net & Twine Co. v. Mayo

Cardwell, J., delivered the opinion of the court. This is an appeal from a decree of the Court of Law and Chancery of the city of Norfolk dismissing the bill of appellant, the American Net and Twine Company, a corporation, filed against B. Mayo and his wife, and John T. Mayo, their son, the purpose of which is to set aside two deeds executed by B. Mayo and wife to their son, John T. Mayo, whereby the latter acquired all of the real estate of which B. Mayo was seised and possessed at the time the deeds in question were executed. The bill alleges and charges that the deeds were not upon a consideration deemed valuable in law, but were executed with intent to hinder, delay, and defraud complainant, and that since the conveyances were made B. Mayo has no property out of which the judgment in favor of complainant against him can be made. The two deeds in question were executed on the 20th day of October, 1896, during the pendency of the suit of appellant on the law side of the Court of Law and Chancery of the city of — 184 — Norfolk, in which the judgment in favor of appellant before referred to was obtained. The defendants, B. Mayo and wife, answered the bill jointly. They admit the execution of the deeds to their son, but deny that they were made without consideration deemed valuable in law, or that they were made to hinder, delay, and defraud complainant. The answer of John T. Mayo states that it is true that on the 20th day of October, 1896, and after the institution of the common law suit of complainant against B. Mayo-, B. Mayo conveyed, by two separate deeds to respondent, the real estate in the bill set out and described, and that respondent is the son of B. Mayo. Bespondent then denies that the conveyances were made by B. Mayo in anticipation that judgment would be recovered against him by the plaintiff in the common law suit, or with the object or intent on his part to prevent the plaintiff from realizing anything on the judgment, if obtained, from the property so conveyed to respondent, and that if B. Mayo had any fraudulent purpose in his mind in making the conveyances to respondent he (respondent) was not informed of such purpose, and did not unite in it. He further denies that the deeds in question were not upon a consideration deemed valuable in law or that the same were made to hinder, delay, and defraud the complainant. The complainant replied generally to the defendants’ answers, and numerous depositions were taken for the complainant and the defendants, and the court below dismissed the bill, upon the ground that the evidence was not sufficient to sustain the charge that the deeds were not upon a consideration deemed valuable in law, leaving out of view the evidence adduced to show that the defendant, John T. Mayo, had knowledge of the fraudulent intent of the grantor, B. Mayo, in making the deeds in question. The first question for consideration is, do' the pleadings put in issue, as to the defendant John T. Mayo, the fact, whether — 185 — or not the conveyances in question were made with the intent on the part of the grantor, B. Mayo, to hinder, delay, and defraud the appellant, and that the defendant, John T. Mayo, was privy to such fraud? The averment of the bill as to fraud in the execution of the deeds follows the forms given by Barton in his Chancery Practice, and Sands in his Suit in Equity, where deeds are attacked on the ground that they were made without consideration deemed valuable in law, and with the intent to hinder, delay, or defraud the creditors of the grantor. The averment is almost identical with that in the case of Herring et als. v. Wickham, decided by this court, and reported in 29 Gratt. 628. In that case there was no demurrer to the bill, but an answer only by Mrs. Wickham, denying the allegations of fraud, and disclaiming any knowledge on her part of the fraudulent intent of the grantor, yet the court in its opinion by Staples, J., after holding that the deed was upon a valuable consideration, marriage then being in law deemed a valuable consideration, said: “If it be conceded/therefore, that Mr. Wickham’s intention in making the settlement was to avoid payment of his debts, the question still arises, Did Maria E. Kersey (now Mrs. Wickham) have notice of that intention? ” and he proceeded to discuss that question at great length, holding that the evidence was not sufficient to fix upon Mrs. Wick-ham knowledge of the fraudulent intent of the grantor in making the deed of settlement under consideration. It, therefore, clearly appeal's that the court in that case considered that that question was put in issue, otherwise, after holding that the deed was upon a consideration deemed valuable in law, the end of the case was there reached, and the court would not have gone into a careful consideration of the evidence as to whether Mrs. Wickham was a privy to the fraud alleged in the bill. Fraud must be charged, and this should, in general, be done by setting forth the facts which constitute the fraud. A mere — 186 — allegation imputing motives of fraud is not sufficient. But an averment of an intent to delay, hinder, or defraud creditors is not an averment of a conclusion of law, but of an essential fact. Fraud may be sufficiently averred by setting forth the particular manner in which the act was done, and the particular end and design to be accomplished. Where the facts thus stated show that a fraud was designed and perpetrated, that may be a sufficient averment of the fraud, although the bill does not state the conclusion which the law will draw that the act was fraudulent. Bump on Fraud. Con., p. 547. The averment of the bill in this case is that the grantor, B. Mayo, conveyed by the two deeds in question, all of his property to his son, leaving nothing out of which complainant could make its debt, and that the deeds were not only without consideration deemed valuable in law, but were executed with intent to hinder, delay, and defraud the complainant. blow, the averment that there was no consideration must necessarily relate to the grantee as well as to the grantor, as the consideration could alone come from him, and when that averment is followed immediately by the conjunction “ but,” it seems that it would have no real sense, unless this word referred also to the same persons as the word “ consideration ” refers to. A deed is the method by which the title of real estate is transferred from one person to another, and there must be a grantor and a grantee, and where the charge is that the deed was executed with intent to defraud; that it is as a part of a scheme to defraud, it seems to necessarily follow that the charge of fraud and the manner in which it was perpetrated refers.to the grantee as well as to the grantor, and in this case the grantee, John T. Mayo, so understood the averments of the bill, as he not only did not demur to the bill, but specifically denied that he had knowledge of the fraudulent intent of his father in conveying his property to him, nor did he object to any question asked of the witnesses, which went to prove that he did participate in the fraud alleged. — 187 — A bill of this character must at least tender an issue which can be met by a denial, and by testimony, and direct the court to an inquiry that is definite and intelligible, but general certainty is all that the courts of equity require in the statements of facts in a bill. Facts may often be indirectly alleged, or expressed by necessary implication; and a charge in general terms, where it is the point on which the merits of the cause turn, and does not come in collaterally and incidentally, will warrant the production of evidence to particular facts. 6 Eng. PL & Pr., pp. 284-5, and authorities cited. We are of opinion that the pleadings in this case are sufficient to put in issue whether or not the conveyances attacked as fraud-' ulent were made with intent to defraud, and that the grantee, John T. Mayo, was privy to such fraud, and this brings us to the consideration of the evidence relied on to show not only a want of consideration deemed valuable in law sustaining the deeds, but that they were executed with fraudulent intent on the part of both the grantor, B. Mayo, and the grantee, John T. Mayo, his son. Where a conveyance is attacked on the ground of fraud the burden is primarily on him who charges it, but this burden is shifted to- those who try to- uphold the conveyance when a prima facie case of fraud is shown. Hickman v. Trout, 83 Va. 490; and Todd v. Sykes, ante, p. 143, and the authorities there cited. It may be said, without a review of the evidence in the case before us, that the- presence of indicia of fraud clearly appears, and the burden of proof rests upon the appellees to show the Iona fides of the transaction herein assailed by the appellant. The vendee having the burden thus cast upon him must show that he paid a valuable consideration for the transfer of the property in controversy, and if this is established by the evidence, proof of the vendor’s fraudulent intent is insufficient, but, though the vendee paid a valuable consideration for the property, still, if he had a fraudulent intent in taking the conveyances, or had — 188 — notice of the vendor’s evil design, the conveyances are fraudulent and void as to the claim of appellant asserted in this suit. Waite, on Fraud. Con., sec. 271. The grantor, B. Mayo, had been engaged in the. fishing business as partner with one F. P. Whitehurst,-who died in 1895, and was also engaged in merchandise in the city of Norfolk, conducting a retail grocery store in charge of his son, John T. Mayo, who, with his wife and one child, lived over the store, and this latter business continued until September, 1896, when the store and its contents were burned at 2 o’clock in the night. The claim of appellant asserted in this cause was contracted by the firm of Whitehurst & Mayo, but chiefly oh the credit of B. Mayo, as Whitehurst owned no property. B. Mayo at that time was possessed of real estate worth from $8,000 to $10,000, but was insolvent. He was so- largely in debt, to- use his own language, he “ owed everybody and was afraid to meet anybody.” It was his avowed purpose not to pay any of the debts contracted by the firm of Whitehurst & Mayo, among which was the debt of the appellant, and it is not seriously denied by John T. Mayo, appellee, that he had notice of his father’s insolvency, for his father not only told him this, but told him that he would have trouble if he bought his property. He also knew of the pendency of the common law suit of appellant against his father for the debt due to- appellant when he took the conveyances from his father of all the father’s property. The father at that time, it is true, had one or two other pieces of real estate standing in his name, but it is confessed in this record that he held the legal title to this property for one Shellhouse in order to keep- it out of the reach of Shellhouse’s creditors, and about the same time that he conveys his own property to his son this Shellhouse property is conveyed by him to Shellhouse’s mother, and this same Shell-house and John T. Mayo, after these conveyances were made, turn up as the owners of B. Mayo’s fishing outfit in time to keep it out of the reach of appellant’s execution against B. Mayo. — 189 — The appellee, John T. Mayo, claims to have paid his father as the consideration for the conveyances to him of all his property $4,500 in cash, and assumed mortgages on the property amounting to something like $1,500. Both the father and son were examined in this case as adverse witnesses, and separately. When questioned by appellant’s counsel as to' how he acquired the means with which to purchase and pay for his father’s property, John T. Mayo makes the statement that he had $2,400 of the money which he had saved up from his salary when working for the Atlantic Tea Company at $15 per week from the time he was about U years of age till he was about 20, and from the same salary or pay received by him from his father from the time he took charge of his father’s store to the time the store was burned, which was not quite three years. He says that while living with the Atlantic Tea Company he did not throw away more than $2 per week, as he had no board to pay, and only to buy his clothing, to pay his car fare and ferriage over to Portsmouth, where his business was, and to pay for his cigars; that his smoking was his chief item of expense, as he smoked all the túne, but his cigars and cigarettes did not cost him over $1.50 per month. He says that while working for his father he took out his $15 per week every Saturday night, and turned over the balance of the money taken in at the store during the preceding week to his father; that the only expense he had while living and keeping house over the store was that of clothing himself, wife and child, and other necessary expense, except groceries, which he got from the store. Mow, then, his statement, in substance, is that in little less than six years, upon a salary of $15 per week, (though as we shall presently see, his father’s sworn statement is that he only paid his son $10 per week he saved and had in cash $2,400, and, moreover, he says that he had $J00 more and “ much more.” He made no investments during this time, nor did he deposit a dollar in any bank, and, when asked where he kept this money, he answered that he kept it with him — 190 — up over the store where he stayed. When asked “ Did you keep it in a safe, or just up stairs? ” he answers, “ I had a safe down stairs, and I was very much afraid of that safe, and I kept that money where I could get it.” “ Did you ever show it to anybody? ” Answer: “ Ho, sir. If I had been living in that neighborhood, and would let anybody know that I had that much money, -why I would have been crazy. That is worse than the Dive Points in New York.” When asked how much money he saved the last year, he answered he could not tell, nor could he tell how much money he had when he went to work for his father in the store. He says that when the store was burned (at night, as we have seen,) he came out of that house with nothing but a pair of shoes, an undershirt, “ and that little bundle of money ”; that all of his, his wife’s, and child’s clothing was burned. According to his statement, notwithstanding his. father owed him, and still owes him, $300 of borrowed money, he paid, in the law office of Mr. Drewry, in the city of Horfolk, in the presence of Mr. Drewry, $3,900 in cash to his father, all in paper money, and paid him a short time thereafter $600, making the $4,500, the money consideration for the conveyances of his father’s property to him, of which amount he says he paid of his own money $2,400, and $1,500 borrowed of a man by the name of Wharton, secured by trust deed on the property he got from his father; yet, within one month before the supposed purchase from his father, John T. Mayo tried to borrow $300 from Colonel Ackiss, a witness in this case, to replenish goods in the store that was afterwards destroyed by fire, and, but a short time after the conveyance from his father, sold a piece of the property conveyed to him for which he paid, as he claims, $900, for $700; although, if he is to be believed, he had not only the $2,400 which was paid over to his father in Drewry’s office, but $700 more and “ much more ” money, none of which he attempts to account for except the $2,400. Hot a living soul testifies to his having money, none saw the bundle of “ $2,400 ” and “ $700 — 191 — and much more,” all, paper money that he brought out of the store when it was burned, but witnesses, who had known him all of his life well, say that they never had any reason to suppose he had money saved up and never heard of it, and never before had he invested money in real estate, nor, as we have already seen, put a dollar in bank or elsewhere at interest. B. Mayo was unable to say where his son got the money with which to pay for the property conveyed to him, and repeats the statement that the salary of his son when working in the store was only $10, instead of $15, per week, and that this was not paid, but was retained by him as due to his son, and that-the accumulated amount, which he was unable to give, even approximately, amounted to somewhere between $1,000 and $1,500, and this amount due to his son, whatever it was, went to make up in part the money consideration that his son paid him for the property. He was unable to say just how much his son paid him in Mr. Drewry’s office, but, according to his statement, it was not over $3,000. B. Mayo says that he took the money paid him by his son in Drewry’s office home, and gave it to- his wife to take care of, yet neither Mrs. Mayo nor Mr. Drewry was examined in this case to prove that they ever saw the money. ■ His statements as to what he did with the money are so evasive, rambling, and contradictory of each other as to scarcely merit consideration. We will, however, consider the statement as to what he did with $2,900 of the money, as this is relied upon so much as showing the bona fides of the transaction by which John T. Mayo ácquired his father’s property. He says he paid $1,900 of the money to W. L. Whitehurst as a repayment of that amount borrowed from him, but he could not tell whether he paid it to Whitehurst before Christmas, 1896, or after. One time he said it was before; again he said it was after. Uor could he produce the note paid to Whitehurst, although he said he had it, and was given an opportunity to produce it. — 192 — Whitehurst was examined for the. defence, and, according to his statement, he loaned B. Mayo several sums of money, but could not tell when, and, in giving the amounts loaned him at different times, he shows that they sum up $1,750, and not $1,900, leaving out of all consideration interest on the amount, and he admits that he took no notes from B. Mayo for the amounts loaned him until about the time Mayo conveyed his property to his son. Whitehurst says that B. Mayo' paid him this money in the street in Norfolk; that he was riding along in his road-cart, when B. Mayo hailed him, and said he wanted to pay him what he owed him; that B. Mayo went off, and after a little while came back, and handed him a bag of money, gold, silver and paper money, which he (Whitehurst) took out to his home, five or six miles in the country, without counting it, and did not count it until the next day, or possibly several days, but delivered Mayo his note the next time he saw him. When asked what he did with this money, he stated that he paid some debts with some of it, and drank up the balance, and refused to show that he had put any of the money in bank, or what he did with it, and says he took no security from B. Mayo for the money loaned him, although the proof is that he was very particular to see to the security for money loaned to others in less amounts, and afterwards refused to take up a note of B. Mayo’s, secured by trust deed, until his lawyer assured him it was all right. In fact, the answers to the questions propounded to him are so evasive and frivolous as to make it very questionable whether or not he is entitled to belief; but, in the view we take of this case, it is immaterial whether his statements are true or not. Of the money paid to B. Mayo by his son, as is claimed, B. Mayo says that he paid $1,000 of it to a man by the name of Collins for money borrowed of him, but Mayo could not tell when he borrowed the money, nor could he produce the note said to have been paid Collins. True, Collins testifies that he paid him the money, but Collins could not tell when the note — 193 — was payable, and nothing definite beyond that he'loaned Mayo the money, and Mayo paid it some time in September or October, 1896. He admits that the only property he has stands in his wife’s name; that he has been a borrower of money secured on that property, and borrowed money for his wife to pay for other property about the time he says he loaned B. Mayo the $1,000. His testimony, like that of Whitehurst, is frivolous and evasive, and in fact all that need be said of it is that it does not bear the impress of truth. But if it be conceded that B. Mayo did pay W. L. Whitehurst $1,900, and Collins $1,000, some time within several months after the conveyance of his property to his son, Nstill this is not important in this case, and has, at most, bnt little bearing upon the question whether or not John T. Mayo paid for the property conveyed to him by his father, for it appears that the $1,500 borrowed, from Wharton was secured on the very property that was conveyed to John T. Mayo, and that B. Mayo, if he is to be believed, got the insurance on his storehouse and its contents amounting to something like $850, and had money from other sources about that time; so that he could have paid the debt to Whitehurst, and the debt to Collins, without having gotten it from his son, and these debts were due to friends whom he says he all the time intended to pay. Bather and son were at that time living together, in the same house. Mo change is made either in the residence or business of the father, only the title to' the property is transí erred to the son, and the business continued in his name. It moreover appears that but a very short time after these conveyances were made, both B. Mayo and his son proposed to Colonel Ackiss to secure a debt which B. Mayo owed him on a part of the property which John T. Mayo claimed to have purchased from his father, and in a conversation in this connection had between Colonel Ackiss and B. .Mayo, ■ in the presence of John T. Mayo, B. Mayo, referring to the conveyance to his son, — 194 — said to Ackiss that the transfer would have been made to him, but he knew that he (Ackiss) would not have taken it. To this, with John T. Mayo still present, Colonel Ackiss replied: “ bTo, sir; all you could convey to me would be enough to pay my debt. I have had a good many offers in my life to cover up property”; and John T. Mayo said not a word in reply to this insinuation,that the deeds from his father to him were for the purpose of covering up the property, although before this, without provocation, or even fraud suggested, as to the conveyances in question, John T. Mayo said to this same witness, Ackiss, that he had purchased his father’s property, paid for it, and if anybody said there was any fraud in it he intended to sue them. Much stress is laid upon the fact that Colonel Ackiss says that he had known B. Mayo a long while and always regarded him an honorable man; that is, up to the time of the making of these deeds to his son. It may be true that Mayo up to that time had been honorable and upright in his business transactions, and still yielded to the temptation to save his property, by a fraudulent transfer of it to a-member of his own family, when overtaken by insolvency and tested by adversity, an experience he had never had before and one that too' often, it is to be deplored, carries off t-heirfeet men of a higher order of intelligence, and who have better opportunities than he to acquire better ideas of morality, causing them to resort to methods they never before thought of, and would have scorned. This witness had another very good reason for changing his opinion of B. Mayo-, whom he had often trusted and befriended. After the transfer of his property to his son, and the conversation between the witness and B. Mayo, in the presence of John T. Mayo, before spoken of, B. Mayo met witness, a man 74 years of age, called him a thief, and struck-him a violent blow in the face, because, as he said, witness had told things that had been told him in confidence, referring, óf course, to the. conversation in the presence of John T- Mayo,. . • — 195 — The statements of B. Mayo and John T. Mayo are irreconcilably in conflict as to all 'material facts going to establish the honesty of this transaction. Many of the conflicting statements have already been set forth, a number of others might be mentioned, among which is the statement by B. Mayo that his son paid him the $3,000 in Drewry’s office in gold, silver, paper, and perhaps some in copper, while the emphatic- statement of John T. Mayo is that the whole $3,900 he claims to have paid was in paper. B. Mayo said his business did not pay him, and that was why he sold out. John T. Mayo says not only that it paid, but paid well. The circumstances attending and following a transaction are often of such character as to leave not even a shadow of a doubt as to the real object and motive of the parties engaged in it. Hazlewood v. Forrer, 94 Va. 706. In order to avoid the conveyance, it is not necessary to prove that the grantee had positive knowledge of the grantor’s fraudulent intent'. It is sufficient to prove that the grantee had knowledge of facts and circumstances which were naturally and justly calculated to excite suspicion in the mind of persons of ordinary care and prudence, and which would naturally prompt him to pause and inquire before consummating the transaction, and that such inquiry would have necessarily led to a discovery of the facts from which the law imputes fraud to the grantor. Ferguson v. Daughtrey, 94 Va. 308. The evidence in the case at bar has been given a most careful consideration, and we are' of opinion that the transfer of the property of B. Mayo to his son, complained of, was without con- • sideration deemed valuable in law; that the deeds in question were executed -with intent to defraud the appellant, and that John T. Mayo’had notice of the fraudulent intent of the grantor and was a privy to the fraud. - Therefore, the decree appealed from is erroneous and should be reversed, and this court will enter such decree as the court — 196 — below should have made, setting aside the deeds of conveyance in question as fraudulent and void as to the judgment of appellant asserted herein, and remanding the cause to the court below for such further proceedings as may be necessary to carry into effect the decree of this court.