Sipe v. Earman

Citations

• 26 Va. 563
• 26 Gratt. 563

Syllabus

<p>1. A deed of trust to secure bona fide creditors, which conveys land, horses, cattle, &c., farming implements, household and kitchen fumiture, growing grain and vegetables, the grantor to retain possession for three years, by paying the interest on the debts secured, is not fraudulent per se, though made without the knowledge of the creditors secured.</p> <p>2. Nor does the execution of the deed pending a suit against the grantor, by a creditor not secured by it, and a short time before the term at which it was probable judgment would be rendered against him render the deed fraudulent.</p> <p>3. Nor does a provision in the deed, authorizing a sale of the property within the three years at the instance of the grantor, render the deed fraudulent.</p> <p>4. If there was a fraudulent intent in the grantor in making the deed, (of which there was no evidence,) as it is not fraudulent on its face, and the trustee and creditors secured by it had no knowledge of its execution until it was done, they cannot be affected by such fraudulent intent, and the deed is valid as to them.</p> <p>5. A judgment creditor files a bill to set aside the deed for fraud, and for general relief. Though the deed is held to be valid, the plaintiff is entitled to the surplus after paying the debts secured; and the bill should not be dismissed, but under the prayer for general relief, he is entitled to an account of the debts secured by the deed, and to have a sale of the property.</p>