I do not agree with the majority opinion. The bill of complaint leaves much to be desired in the way of particularity, but I believe the allegations therein are sufficient. The bill, in substance, alleges that in the year 1932, A. A. Cumby erected a small house on land then owned by a relative, but now owned by his daughter. In the year 1933, he was adjudicated a bankrupt; that he and his family occupied the house; that in the year 1937 he purchased materials from a lumber company to build an addition to the house originally erected by him on the land; that there is a balance of $907.21 owing to the lumber company for materials going into the erection of said addition, and the sum of $100.00 due C. T. Bailes and $17.00 due George Carter for labor on said addition; and that in the year 1941 A. A. Cumby was again adjudicated a bankrupt. It is true that where fraud is relied on a general charge thereof is not sufficient but to my mind the *Page 364 foregoing allegations of the bill allege sufficient facts on which a conclusion of fraud can be predicated. The transactions with reference to this land which are pleaded clearly allege fraudulent intent to Cumby.
The allegations charge that Cumby expended money in the improvement of property belonging to a third person, his daughter, and in my view the value thus added to the land of Ruth Cumby Kinder is subject to the claims of Cumby's creditors. Burt v. Timmons, 29 W. Va. 441, 2 S.E. 780; Humphrey v. Spencer, 36 W. Va. 11, 14 S.E. 410; Hanley v. Loan andInvestment Co., 44 W. Va. 450, 29 S.E. 1002; Vandervort v.Fouse, 52 W. Va. 214, 43 S.E. 112.
This is particularly appealing to a sense of fair dealing when it is considered that the debts were contracted for materials and labor which enhanced the value of the land. By accepting the benefit of the improvements made by her father, Ruth Cumby Kinder participated in his fraudulent acts.Donehoo v. King, 83 W. Va. 485, 98 S.E. 520.
In the case of Hanley v. Loan and Investment Company, supra, it was reasoned that creditors of a husband may subject the rents, issues and profits of land belonging to his insane wife to the satisfaction of their debts, where he had borrowed money and invested it in improvements on her land, and this principle applies with equal force where a father has contracted debts for placing improvements on the land of his infant daughter. I think the allegations of the bill are sustained by the evidence, and that the prayer thereof with respect to subjecting the improvements to the claims of Cumby's creditors was sufficient to justify the relief granted.
For the reasons hereinabove stated, I would affirm the decree of the trial chancellor. *Page 365