(dissenting):
The bill charged that the deed was without consideration, voluntary, and fraudulent. This called on the party to prove the consideration recited to be true. Rogers v. Verlander, 30 W. Va. 619 (5 S. E. 847). He did not do so, unless his answer bo read as evidence. The rule was atone time that an answer responsive to the bill was conclusive evidence in favor of the defendant, uuless overcome by two or more witnesses, or one witness and corroborating circumstances; but my understanding has been, and, as I had thought, also that of the profession, that our Code provisions had uprooted that rule and given the answer no force as proof, whether the bill be sworn to or not, or the answer sworn to or not, its only office being now to put the plaintiff to proof of those things in his bill calling for proof. Chapter 125, section 38, gives the plaintiff right, by swearing to his bill, to search the conscience of the defendant for purposes of discovery by thus requiring a sworn answer; but the answer is not evidence for defendant, as the section says that, if the answer be sworn to, it shall not he entitled to any more weight than if unsworn. Now, this means that though the bill be sworn to, and the answer likewise, yet the answer shall not have any more force from being verified by oath. It does not mean that it is no evidence only in the case where the bill is not sworn and the answer *148is, leaving it to be implied that, where both are sworn, the answer is evidence. The plain meaning is that in no case is the answer evidence. This is plainer from section 59, declaring that when a defendant, in his answer, denies any allegation of the bill, its effect shall only be to put the plaintiffon proof of the truth of the allegation. Does not this apply to all answers, verified or not verified? Mr. Barton, in note in his Chancery Practice (page 396) so construes our statute. The very fact that section 59 declares that answers shall onlj’ put the plaintiffon proof, coupled with the fact that section 38, treating of those particular answers that are verified, declares that they shall have no more weight than if not verified, shows a cautious design in the lawmaker to pointedly and expressly so provide as to them.
After having written to this point, I accidently meet with the opinion by Judge Green in Rogers v. Verlander, 30 W. Va. 619 (5 S. E. 847) in which he discusses this matter, though thesyllabus gives no intimation of it; and he says on page 640, 30 W. Va., and page 847, 5 S. E., that under our statute law, answers are no longer evidence in any case, whether sworn to or not.
Another matter: The allegation of the bill of the insolvency of Riley is undenied, and taken for true. That being so, he could not pay one creditor, to the total exclusion of others, by conveying his property to that creditor. I concede the preference of the deeds of trust, but an insolvent can not convey his property to that one creditor to pay those deeds of trust, and thus shut out others, saying the property is worth no more. The court can not, the parties can not, say it is worth no more. That remains to be seen when put up by other creditors. They may wish to buy it paying more. They have a right to put it to public sale. On the theory adopted by the circuit court that the conveyance was not voluntary or fraudulent, but only liable because the grantor, Riley, was insolvent, the decree ought to have been to sell the property, conceding the deed of trust preference. But there ought to have been a decree selling for Johnson’s debt alone, because there was no proof, save the answer, that it was conveyed to pay the *149deed of trust or any consideration freeing it from fraud. Their mere former existence did not prove the allegation of the answer that it was conveyed as payment of those deeds of trust.
Another matter: The opinion of Judge Dent holds that if the deed from Riley to Flaherty be void, because the grantee is not named in the granting part, then the plaintiff has no right to sue in equity, having no lien. I do not assent to this. If the deed do not pass legal title, yet it would operate as a contract to convey. If abortive to operate as a deed, a court of equity would hold it a contract to convey and enforce a proper deed. It vests in Flaherty an equitable estate. If, then, Johnson has right to sue, he can sue to avoid an executory contract, as well as a deed passing title, under the broad language “every gift, conveyance, transfer of, or charge upon any estate, * * * or other writing,” of section 1, chapter 74, Code, and the language “sale, conveyance, transfer,” in section 2.
And again, if a writing or judgment or other act be simply void, yet equity will entertain a bill to declare its nullity, and expressly avoid it, so as not to leave it open to question, as a cloud on one’s title, or as impeding or shadowing the enforcement of his rights. If one make a writing to defraud creditors, and, for some defect, it is void, passing no title, may not the creditor yet assail it, to get it out of the wayq and sell the purchaser, under his decree, a title unclouded by it, and enhance thereby the value of the property to pay his debt? Who would buy debt or property with this cloud overhanging? I have always understood that equity would assume such jurisdiction. 2 Story, Eq. Jur. §§ 699, 700; Wait, Fraud. Conv. §§418, 512.
But, second, is the deed void and ineffectual ? It reads : “This deed, made the 3d Feb., eight hundred and ninety four, between C. C. Riley and E. Esta Riley, his wife, parties of the first part, and Patrick Flaherty, party’ of the second part;” and then contains a grant of the lot by “parties of the first part,” without naming in this place a grantee. Elementary books say it is the office of that part of a deed called the “premises” to contain names of parties, the consideration, the thing granted, and declare who are *150grantors and grantees. Here the premises state that it is a deed between certain parties of the first part and one of the second part, and the parties of the first part grant. Now, to whom ? Of course, to the party of the second part. So that the premises name parties, grantor and grantee. Can it bo doubtful who is grantee? Even by strict construction of the premises, do they not show who is grantee? There is a grant of a thing, and the intent is plain as to the grantee, just as plain as if his name were repeated in the granting clause. A deed must have parties, grantor and grantee. Adams v. Medsker, 25 W. Va. 127. This has.
Another matter: It is held that, because no fraud is established, Johnson can not sue in equity without a lien. Code, c. 133, s. 2, gives a creditor, before obtaining judgmen t or decree for his claim, right to “institute any suit to thus avoid any gift, conveyance, assignment of, or charge upon, the estate of his debtor.” As shown above, the act assaulted in this suit is a conveyance, viewed as either a contract or operative deed, within the meaning of the liberal construction of the word “conveyance” in this statute. It is certainly a “sale” and “transfer” also. It is also a sale under section 2, chapter 74, and we ought to construe section 2, chapter 133, giving right to suit, to be as broad as the first two sections of chapter 74; branding certain acts as void as to creditors. The remedy to avoid ought to be coextensive with the things that arc to be avoided.
Then, as claimed above, I hold that fraud in fact, in the absence of proof of consideration, save by the answer, was established, and thus there is jurisdiction. But, in addition, if this were otherwise, then the act of Riley, an insolvent, conveying property to one creditor in payment of a debt, however valid and precedent, thus giving preference and payment to him to the exclusion of others, is in the teeth of the very letter of section 2, chapter 74, Code, and is branded by it as fraud in law, though not in fact, just as a voluntary conveyance is a fraud in law, and not in fact, and, like it, warrants the application to equity to overthrow' it, under section 2, chapter 133. The fact that Flaherty’s debt may be h nest or pri r does not affect the question ; it is the fact *151that the insolvent’s act pays one creditor by an act which excludes another from the property that renders it fraudulent in law. Such act of an insolvent is implied fraud, not fraud in fact; bat it is hurtful to the creditor, and just as fully justifies and calls for the remedy given the general creditor as the case of fraud in fact. Such is the statute ; such the general law. Bump. Fraud. Conv. 24; Wait, Fraud. Conv. §§ 9, 10,328: 1 Story, Eq. Jur. 258, 849. The statute prohibits certain acts of insolvents, stamps them as legal fraud on creditors, and that invokes the agency of equity to avoid them.