Biddinger v. Wiland

Irving, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Garrett County, setting aside a certain deed made by the appellant, Biddinger and his daughter, to appellant Bowser, as in fraud of creditors. The bill charges thatSimeon Biddinger, being indebted to this complainant, and intending to defraud him, and his .other creditors, having purchased a tract of land, and having fully paid for the same, caused Jacob Hare and wife,, his vendors, to convey the same to Florissa, an infant daughter of Simeon Biddinger the purchaser, which conveyance was made on the 26th of May, 1816. This deed to the infant, Florissa Biddinger, who had no means and paid no part of the purchase money, the bill charges must be treated as in trust for the creditors of Simeon Biddinger (the father) who paid the purchase money, and is alleged to be insolvent apart from that land.

Subsequently, and in further execution of his fraudulent purpose to defraud the complainant and others, it is alleged that Simeon Biddinger caused his daughter to unite with him in a deed for the property to one James Bowser for a simulated consideration ; that the same was made pending a suit against Simeon Biddinger. for the complainant’s claim against him, but before judg ³⁶¹ ment had been obtained thereon, as was afterward done ; and that James Bowser took, with a full knowledge of all the circumstances surrounding the transaction, and in aid of Biddinger’s design to defraud complainant. The answer of the adult defendants, Biddinger and Bowser, which, is joint, denies the fraud and insolvency of Biddinger and his, indebtedness to the complainant; but it admits the infancy of Florissa Biddinger, and the payment of all the purchase money by her father Simeon Biddinger, and that Florissa had no means of her own. It avers the consideration named in Bowser’s deed to have been paid bona fide. The infant’s answer, by guardian, does not admit allegations, and sxxbmits her rights-to the Court’s protection.

The proof shows conclusively the purchase by Simeon Biddinger for seven hundred and fifty dollars, which he paid, and that he caused the land to be conveyed to his daughter, Florissa, then only seven or eight years old. It shows that he had the double purpose of cheating the complainant out of his claim against him, and of depriving his wife, from whom he was living apart, of dower in the land. Notwithstanding this purpose, it is contended that the defendant Bowser, took as a purchaser without notice of the fraud, and is not affected by it. This contention the proof does not sustain.

Bowser was the half brother of Biddinger. Florissa, his niece, lived with him. He knew the deed was made to her, and that she was "a mei’e child and wholly without means; and that when she joined in the deed to him she was not more than ten yeai'S old. He knew the character of the complainant’s claim against Biddinger, his brother.

He knew it was in suit, although judgment was not recovered till after conveyance to him. In addition to all this, Josiah Biddinger testifies that on application to rent the place, he sail! he couldn’t do it, andón being pressed and asked if the conveyance to him “was not a sham?” said “it was ³⁶² little that way.” Bowser denies this conversation; but the witness is very circumstantial in his recollection ; is impeached in no way, and appears to have no interest in prevaricating; and we see no reason for discrediting the •statement. To our apprehension the proof establishes a bold case of fraud on the part of both Biddinger and Bowser. So far as the child, Florissa, is concerned, she was too young to be •supposed to have any knowledge of the object or purpose in the matter; and the Court very properly treated her ■as an involuntary trustee for her father and his creditors, •and appointed another in her stead.

Bowser contends that he paid for the land bona fide with indebtedness of his brother to him. He so testifies, and