Hickman's Ex'or v. Trout

Faun tuero y, J.,

dissenting, said:

I dissent from the opinion of the majority of the court in this case—not only as to the conclusion announced, but as to the facts disclosed by the record. The bill was filed in 1873 by John T. Hickman and George A. Hupp for the purpose and object to have set aside, as fraudulent, voluntary and void, a certain deed conveying all the real estate of Isaac Trout to James S. Trout, and to rescind and set aside the sale of the personalty of said Isaac Trout to the said James 8. Trout, and to subject the said estate, real and personal, to the satisfaction of the judgments and executions of the said John T. Hickman and George A. Hupp against the said Isaac Trout. The bill charges fraud in the transaction, and guilty knowledge on the part of the grantee in the deed, James 8. Trout, of the intention of the grantor, Isaac Trout, to hinder, delay and defraud his creditors generally, and the complainants particularly, and prays for a discovery from both of the said defendants, and for a jury to try the issue.

The answers of Isaac Trout, grantor, and James S. Trout, grantee, are filed as of November, 1874, and March, 1874, and they deny all fraud, guilty knowledge or intention of fraud, and they make full disclosure responsive to the bill, and assert the Toona fides of the sale and the execution and full and valuable consideration in the deed.

Depositions are taken, pro and con, and filed in the *494cause. But no step is further taken in the cause after 1875, until in September, 1884, when the death of the complainant, John T. Hickman, is suggested, and the cause is revived in the name of his personal representatives, and continued until April term, 1885, when, upon the submission of the cause to the court, both parties waiving a jury, the decree was entered dismissing the bill.

The facts of the case as disclosed by the record are : That Isaac Trout, an aged and feeble man of seventy-three years, and in ill-health, living in the town of Woodstock, Va., incapacitated for business, and unable to obtain a living for himself and family, consisting of himself, his wife, and a widowed daughter with several children, executed a deed dated February 5th, 1872, acknowledged March 7th, 1873, and admitted to record March 28th, 1873, by which he sold and conveyed to his son, James S. Trout, his real property, consisting of a small lot with a dilapidated house upon it, in the village of Woodstock, a five-acre out lot, and a tract of sixty-three and a half acres of land near to or adjoining the town, for the consideration of $3,000, payable $500 cash, and the residue in instalments of $500 each, evidenced by the bonds of said James S. Trout to the said Isaac Trout for $500 on demand, with interest from date, $500 payable four years after date, $500 payable six years after date, $500 payable eight years after date, and $500 payable nine years after date, each with interest from date, February 5th, 1872.

The said Isaac Trout had previously and by another transaction sold his personalty, consisting of a small and indifferent lot of old household articles, which mostly were within the poor debtor’s exemption, for the price of $150, paid by James S. Trout.

The aforesaid deed and sale of personalty the bill charges to have been designed and executed with intent to hinder, •delay and defraud the creditors of the said Isaac Trout, *495and especially the complainant, Hickman, in the collection of their just debts; and the petition for appeal assigns that the circuit Court erred in not so decreeing, and in dismissing complainants’ bill.

The bill charges fraud and collusion of fraud, and gross inadequacy of consideration in the deed. The answers are responsive to the bill, and all fraud or guilty knowledge of fraudulent intent and inadequacy of consideration are denied, in general and in detail, and the deed and transaction being legitimate upon their face, the question for this court is whether, upon all the evidence in the record, and fair deductions therefrom, the charges in the bill are sustained by evidence sufficient to overcome the presumption of law in favor of honesty and legitimacy? In the case of Williams v. Lord & Robinson, &c., 75 Va. 400, Burks, J., delivering the unanimous opinion of this court, says: “According to numerous decisions of this court, there is nothing on the face of this deed that warrants the inference of fraud. There is no doubt that the provisions of a mortgage or deed of trust may be of such a character as of themselves to furnish conclusive evidence of fraudulent intent; but the presumption of law is in favor of honesty, and the court cannot presume fraud unless the terms of the instrument preclude any other inference.” (Citing Dance v. Seaman, 11 Gratt. 778; Brockenbrough’s Ex’or v. Brockenbrough’s Adm'r, 31 Gratt. 580-591.) Mere suspicion of fraud is not sufficient; the circumstances „of the case may consist with honesty of intention (Bump. F. C. 552, 584-5-6, 2d edition); and the case is one for the court to say whether, upon all the evidence and the peculiar circumstances and situation of the grantor and the grantee, any presumption of fraud is raised, and, if any, whether it be overcome by weightier counter presumption of fairness.

The grantee, James S. Trout, who was a widower without *496children or child, was a printer and owner of a newspaper interest in Woodstock, and as such was engaged in active and profitable business. He lived, and boarded with his father from 1866 to 1872, and (from the necessity of the case, arising from his father’s age, decrepitude, and utter inability to derive a living from his land, which was worn, wasted, and without fencing or improvements), furnished the supplies for the family, in kind and in money, and in payment of wages to servants and other employees, just as they were needed, from day to day—in many instances the father and other members of the family resorting to the stores in Woodstock for needed articles, which were furnished to them upon the credit and account of James S. Trout, who, in addition to all this, paid from time to time,, at the request of Isaac Trout, sundry debts to creditors upon judgments and claims in lawyers’ hands for collection against Isaac Trout, and also taxes upon the land. It was expressly agreed that all this was not a gratuity, but to be paid for by Isaac Trout whenever he could succeed in selling his land. This course of things went on for years, Isaac Trout endeavoring to sell his land and pay his debts— first, at the high rates prevailing in 1866, and subsequent years, and failing to do so, even to the complainant, Hickman, his creditor, who refused to buy the land, saying that he would not give $35 per acre for it, as he had better land, better situated, and with improvements on it (a new barn, &c.), which he had offered to sell for $35 per acre, and could not obtain it.

In 1871, Isaac Trout’s condition was such, from the failure of his crops for several years and inability to find, tenants for his land, without buildings and fencing, and near a town, and wasted and worn and grown up in pine bushes, that he agreed with his son, James S. Trout, to sell his lands to him for the consideration of $3,000, which, though less than he had been asking in former years, when *497lands were greatly higher and more in demand, was considered a fair and full price for the property, in the condition in which it was and had been for so many years, and subject to the contingent right of dower of Isaac Trout’s wife, who was much younger than he and robust in health, and who refused to unite in the sale or to relinquish her dower. From the nature of things, it was impossible for Isaac Trout and his son, James S. Trout, to ascertain at the time of the sale, except approximately, the amount due to James for all his advancements made for the support of the family in all these years; but, making a rough and partial estimate, they were fully satisfied that the lowest sum which would be found due to James S. Trout, upon full and accurate settlement of accounts between him and his father, would be enough to pay so large a part of the purchase price agreed as to make it unnecessary to require security from him, either personal or a lien retained upon the land; but his bonds were taken for the entire purchase money, until about a month afterwards a partial settlement was had, and an amount due James S. Trout was found to warrant the surrender to him of his first two purchase-money bonds of $500 each, which were given up to him. A few months afterwards another and fuller account was settled between Isaac Trout and James, embracing matters due at the time of sale and advancements made from time to time since, which showed that there was due to him, in both settlements altogether, $2,044.31 from Isaac Trout, whereupon two more of his said purchase money bonds for $500 each were given up to him, making in these two settlements $2,000 paid on the purchase money, all of which save $294.33 was due at the time of sale. The two remaining .bonds of James S. Trout for $500 each were assigned, one to Henry Trout for money borrowed from him by Isaac Trout to pay to his creditors, some of which was paid to the complainant, John T. *498Hickman, and the other to his nephew, "Wm. D. Trout, and Henry Trout, for money advanced. These bonds, when they became due, have not been paid because of the pendency of this suit to set the sale aside; but James S. Trout in his answer states, and the record shows, his ability to pay them.

Among the badges of fraud alleged, and chief among them, is inadequacy of consideration. It is well settled that to avail to set aside a deed, this badge, when standing alone, must be so gross as to be inconsistent with any other than a fraudulent intent in the bargainees; and that, when coupled with other badges, it must still be such as upon all the facts and circumstances developed in the evidence to forbid the belief that the vendor ever agreed to sell for such a price in a bona fide sale, or except as a part of a sham sale in fraud of his creditors. Even some inadequacy of price, in the absence of fraudulent intent, is not a sufficient ground to set aside a deed. Tebbs v. Lee, 76 Va. 744. Inadequacy may be indicative of fraud, but may be rebutted, and must be gross and palpable. Southerlin v. March, Price & Co., 75 Va. 229. In this last mentioned case, an insolvent grantor conveyed all his property, and yet the deed was sustained.

The inquiry in the case in hand is, was the price agreed, §3,000, for the land subject to dower, grossly and palpably inadequate, or was it inadequate at all ? . 1

The evidence shows, beyond a question, that James S. Trout’s claim against Ms father was bona fide and most meritorious withal; and he had a legal and moral right to buy the land, as alleged, to save his claim for advancements theretofore made, and to enable his father to pay his other creditors. The record shows that the complainant, John T. Hickman, tried to do the same thing, declaring when Isaac Trout offered to sell the land to him, that it was not worth, and he would not give, §35 per acre for it; *499and then, in 1872, after he had been told by Isaac Trout that it had been sold to James S. Trout, offering Isaac Trout $50 an acre for it to save his debt.

Three other witnesses—Dr. J. S. Irwin, Mark Bird, and C. Lichliter—are introduced to testify to the inadequacy ■of the purchase price of the land. They all testify to their ■conjectural estimate of the land, with clear title, free from dower. The record shows that Dr. J. S. Irwin was the owner of a saw-mill to which James S.- Trout hauled some logs cut from the land he bought from his father. Dr. J. S. Irwin had a debt against Isaac Trout, and he held on to the logs, or lumber cut from them, on the ground that the logs and the land did not belong to James S. Trout, but were the property of Isaac Trout. James S. Trout sued Irwin; and upon the trial Irwin and his counsel, Mark Bird, raised the question and set up the defense of the validity of the sale of the land to James S. Trout by Isaac Trout; and, upon this very issue, upon the verdict of ■a jury of the vicinage, well acquainted with the value of the land, and all the parties and witnesses, the court rendered judgment against Irwin and for James S. Trout.

Sixty-three and one-half acres of land, at $35 per acre, (which John T. Hickman himself said it was not nearly worth), would be $2,222.50. The house in town was not worth so much as $1,000, with a title free from dower, ¡according to the testimony of J. H. Grabill, and the fact that the Wright property adjoining it, a. much larger lot and in every way more valuable and desirable property, had sold for less than that sum.

The witness, V. Neeb, who is a farmer and owner of land •adjoining the Trout land, says, that if the tract contains sixty-five acres, it is worth $3,000; and the town lot of five acres is worth $350; but these estimates are free from ■dower. aSTeeb and Lichliter would not have bought it at .any price subject to dower.

*500According to these witnesses, Neeb and Grabill, who are the best informed and most disinterested witnesses who testify in the case as to the value of the property, $4,380’ was a fair and full price for the entire property free from dower. From this, deduct $1,380, say thirty per cent., for-dower, and it leaves $3,000—the price agreed for the land by the sale from Isaac Trout to James S. Trout. Among the badges of fraud alleged, in the petition for appeal, to exist, are the length of time the bonds of the purchaser-were given to run; the retention of possession of the prop - erty sold by the grantor; and the delay in the acknowledgment and recording of the deed.

The right to give long credits in the sale of property belongs to thejics disponendi of the owner, which the law respects; and the purchase-money bonds all bore interest from date of sale—a fact of import,—the contrary case being adverted to in 77 Va. 827. At the time of the sale, February, 1872, there was no expectation of judgments; it-was not until March and April, 1873, that the complainants sued after learning of the sale and the conveyance. The delay in the acknowledgment and recording of the deed is shown to have been but a mere neglect from procrastination, for the justice was told of the deed at the time of its execution and requested then, and time and again, to take-the acknowledgment months before he did it. The recording of the deed was wholly non-essential as between the parties, and so far as the complainants were or could be affected or concerned; their debts were very old ante-war claims, and one of them a security debt for which Isaac-Trout was bound.

Much stress is laid upon the alleged badge of fraud that-the grantor, Isaac Trout, and his family continued to live in the dwelling in town after as they did before the sale. It is probable, when he sold to his son, that Isaac Trout— aged, feeble, helpless, and dependent upon the dutiful *501affection of liis son—believed that in the future, as in the past, they would all live together in the house. But, if his reliance was upon his son’s duty and devotion to his old father, mother and widowed sister, and not upon any provision in the agreement of sale, it is not a case of secret trust. The existence of any such provision is expressly negatived by the depositions of the parties, and it is nowhere proved. Circumstances which, as between strangers, might point significantly to fraud and collusion in a sale, are explained by the fact that they naturally and properly obtain between the parties to this transaction, and are reconcilable and consistent with good faith and rectitude in the sale by the undisputed fact in the record that James S. Trout, the purchaser, was a widowed, childless son, who had been for years making his home with his father’s family and providing for the household, and “honoring his father and mother” as the heads of the family, though they were actually dependent upon his support. Could the sale vary this state of things and transform the admirable duty of this loving son into the serpent-tooth of a “thankless child”?

This as to the house in town. As to the out-lot and uixty-three and a half acre tract of land, the son, first as helping his father and then as tenant, had long before the sale full possession, management and control of them; so there could not be the usual, formal,, “ outward and visible signs” of the change of ownership as to these. Yet the evidence explicitly shows that James S. Trout, after the sale, made repairs to the house in town, paid the taxes, and improved the land with a new plank fence, planted out, manured and carefully nurtured an extensive and thrifty orchard of several hundred fruit trées; cut and hauled and sold the timber from the land; and exercised such conspicuous, open and notorious acts of ownership as to induce and warrant the verdict of a jury that he was *502the actual owner and bona fide purchaser of the land, in a suit to try that very issue.

There is in the whole record no material circumstance in the case of which it may not be fairly said, “ the circumstance may consist with honesty of intention”; and as-to the most suspicious, there is such a conflict of evidence that the transaction, so far as affected by them, must stand. ■ Bump. F. C. 562 (584 2d ed.).

A comparison of the facts and peculiar circumstances of this case, with the facts of the cases cited and relied on by appellant, in which fraud was held to be proved, (Knight v. Capito, 23 W. Va.; 77 Va.,827; 76 Va., 589; 78 Va.477,) shows such a difference between those cases and this, in many essential particulars, and in their character as a whole, which shows that if they were cases of fraud, this-is not.

The case of Burton v. Mills, 78 Va. (3 Hansbrough), 477 (referred to and quoted from in the petition), was a deed of trust in which the grantor conveyed all his property of every description, incumbered and unincumbered, without regard to the incumbrances, to a trustee for the benefit and enjoyment of the grantor, his wife and children, with the express stipulation in the deed that the trustee should permit the grantor to retain possession and control of the-property conveyed, and to sell and dispose of any dr all of it, and providing that if the grantor should survive his wife the trust should cease and all the property subject of the trust should revert unrestrictedly to the grantor. It was in commenting upon this monstrous fraud that Judge Bichardson, delivering the opinion of this court, said: «This is a remarkable paper. It, in effect, only secures-the grantor’s property to his own use and enjoyment. It was made at a time when the property (to say nothing of the claim of Mrs. Mill) was largely incumbered by tho trust deed of September 27th, 1869, to secure I. P. Johnson, *503no reference to or provision for the payment of which is made, although the use and control of the property conveyed is left absolutely to the will of the grantor. The deed is a sort of conditional declaration of insolvency.” Such is not, in the remotest similitude, the case under review. The sale appears, by the record, to be a bona jide transaction, and I am of opinion that the decree of the circuit court dismissing the bill is right, and the same should be affirmed.

Decree reversed.