Bank v. King , 121 W. Va. 290 ( 1939 )

I regret to say it is my belief that the majority opinion in this case is renewing the procedural complications that were caused primarily by the discussion and holding concerning the right of complainants to amend a bill in the case ofRees v. Coal Mining Co., 88 W. Va. 4, 10, 106 S.E. 247, 249.

The right to amend conferred by Code, 56-4-24, relates both to law actions and chancery causes and contains the following language: "* * * the court * * * may permit any pleading to be amended * * * eliminating from a multifarious bill all but one of the equitable causes of action alleged, or changing the form but not the cause of action, * * *." (Italics supplied.) Code, 40-1-5, extends the jurisdiction of chancery courts in this state to the ground of equitable relief therein originated, i. e., an insolvent's creation of a preference. Code, 40-1-1, applicable to a far broader field, is not restricted to insolvents, but applies to all debtors who do the enumerated acts "with intent to delay, hinder, or defraud creditors".

It is quite clear to my mind that in this case the time has passed during which plaintiff could complain of the conveyance made by King, and that made by his intermediary to Mrs. King, as constituting an interdicted preference. There is some similarity between the two sections last cited, but there is also what I regard as a basic difference.

I think the majority opinion clearly propounds the principle laid down in the case of DeMoss v. McGee, 66 W. Va. 441,66 S.E. 525, when it says: "Undoubtedly, on principle and under the case cited, a bill which attacks a conveyance solely on the ground of express fraud may not be treated as a bill to have the conveyance declared to be a preference, if the attack on the ground of fraud proves unsuccessful. There must, of course, be proper pleadings to sustain an adjudication of preference." The citation of Floyd v. Duffy, 68 W. Va. 339, 69 S.E. 993, 33 L.R.A. (N.S.) 883, to sustain the general rule that pleadings may be amended to conform to the proof is quite applicable so far as it reaches. But in that case, the seventh syllabus point reads as follows: "The trial court may properly allow an amended bill to be filed, after the evidence taken has developed a state of facts, variant from those set up in the original bill, but not constituting a departure, as defined by the courts, nor a new cause of action." (Italics supplied.)

I regret also that I cannot follow the reasoning of the majority opinion which treats the bill of complaint herein as setting up a good cause insufficiently pleaded. It strikes me that the use of the term "preference" in that opinion results in suggesting as the basis for the relief sought an entirely different cause from the one pleaded. There is no ascertainable defect in the bill of complaint in either its form or substance with fraud as the gravamen of the relief sought. It is when the gravamen is altered and grounded on preference that a different statute comes into play, and equitable relief is sought on a fundamentally different basis. Code, 40-1-1, prescribes no time limit. Laches, of course, applies. Under Code, 40-1-5, there is a statutory period prescribed after the lapse of which a ground of relief ceases to exist, not simply becomes unenforceable.

The West Virginia cases concerning the consequence of departure in pleadings (incorrectly termed "amendments") have been to some extent reviewed in the Court's opinion in the case of Gray v. Gray, 120 W. Va. 498, 199 S.E. 361. The extent to which the court in the case last mentioned overruled the opinion in the case of Rees v. Coal Mining Co., 88 W. Va. 4,106 S.E. 247, I believe the majority opinion in this case renders futile.