and negotiable notes given by White, and does not say that plaintiff is entitled to them as holder. It gives dates, amounts, and maturity of the draft and notes, and says that White made them. It does not say to whom executed, but it states that they were given for logs sold by Carney to White, and this justifies the conclusion that Carney was payee in the draft and notes, and owned them; and this denies the application to this case of Sommers v. Allen, 44 W. Va. 120, 28 S. E. 787. I hardly think the omission to state the bank of payment would defeat the affidavit. It is contended that there can be no second attachment in the same suit. The court allows several orders of attachment, to go to different officers, to be issued at the same or different times, but I understand this to mean several orders of attachment on one affidavit for the same ground or grounds of attachment; and so this clause does not justify a second affidavit on a different ground of attachment, and a second attachment on that ground. Nor does that clause of the statute allowing an amended affidavit to show additional facts to sustain a ground of attachment before stated in an affidavit. But the Code says that "the plaintiff, at the commencement of the action or suit, or at any time thereafter before judgment, may have an order of attachment" on filing an affidavit stating that "some one or more of the following grounds exist for such attachment" (naming 8 grounds). Now, assume a suit properly in court, and an attachment on one ground, and the plaintiff later discovers another ground. Why shall he not sue out a second attachment upon a second affidavit, stating the second ground of attachment? In this case Carney alleged grounds of attachment other than that of nonresidence in his first affidavit, and seeing that it was bad, and discovering that White was, or had since become, a nonresident, why not say that the Code intends to allow him the benefit of nonresidence for attachment? Crim v. Harmon, 38 W. Va. 603, 18 S. E. 753. Such second attachment does not, for lien, relate back to the first, but is a lien only from its levy as to personalty, or its date as to land. See Another question: I have no idea that, if there is no jurisdiction for the suit at its start, a second attachment can impart jurisdiction. Jurisdiction, at the start of Carney's suit, rested on the charge that White had absconded and concealed himself from process, and that the debt was fraudulently contracted; and, it being a suit in equity on a legal demand, jurisdiction rested solely on the attachment; and, as the first affidavit was bad, the question arises whether there was jurisdiction,that is, whether the bad affidavit gave the court jurisdiction, so as to warrant a second attachment. For such a question we must distinguish between void and voidable. The first affidavit, though defective, was only voidable or quashable, not a total nullity; and the attachment gave jurisdiction, notwithstanding the defect in the affidavit. Van Fleet, Coll. Attack, § 257; Cooper v. Reynolds, 10 Wall. 308. Mere error in proceedings does not destroy jurisdiction, if the court has jurisdiction in cases of that class. Drake, Attachm. § 89. Attachment proceedings are not void because an affidavit fails to say that the claim is "just." Ludlow v. Ramsey, 11 Wall. 581. That is the defect in the first affidavit in Carney's Case. A total absence of affidavit would render the suit one without jurisdiction, but a mere insufficient averment in an affidavit would not make the proceeding void, as one without jurisdiction. 1 Shinn, Attachm. §§ 152, 411, note 3; Drake, Attachm. § 87a. It is Isaid that the second attachment is without affidavit to support it, unless it be the first or bad one, as the second affidavit is a fugitive paper, not part of the record, because neither it nor its attachment is mentioned in the bill. The affidavit bears the title of the suit, and expressly says that Carney had brought the suit, and that it was then pending. It is a part of the record, though not mentioned in the bill. An attachment is an ancillary proceeding, but is a part of the record; and this one refers to an affidavit, and it and the affidavit bear the same date, and we must connect them. Wherever the validity of an attachment is involved, or the jurisdiction questioned, the affidavit is part of the record. Id. § 90. It is clear that as Carney set up a lien against the property by his attachment, though a stranger to the suit, he not only had right to contest the validity of Miller's atachment, but also, by plea in abatement, to deny the ground on which it stood, and to disprove the facts to show such ground, as the Code allows any person to intervene and dispute the validity of an attachment, or state a claim to, interest in, or lien on the property, under any other attachment or otherwise; in other words, to challenge the validity of the attachment, just as the defendant might do. Ludington v. Hull, 4 W. Va. 130; Capeheart's Ex'r v. Dowery, 10 W. Va. 130. Therefore it was no error to allow the plea in abatement. Stevens v. Brown, 20 W. Va. 450. The party thus intervening must be, not a general creditor by note or other demand, without lien, but must be one who has a claim to, an interest in, or lien on the property by other attachment or otherwise. So reads the statute. 1 Shinn, Attachm. §§ 411, 427; Crim v. Harmon, 38 W. Va. 596, 18 S. E. 753. Of course, as this stranger is allowed to intervene and make defense to the attachment, the correlative right is given the plaintiff to contest this stranger's right by showing invalidity of his attachment, for patent defect or want of ground of attachment. That would be only a right of defense, when attacked. Another question: It was proper for the court to pass on the legal effect of Carney's attachment papers, to determine whether Carney had a valid lien; but had the jury anything to do with them? Carney asked to con test the validity of Miller's attachment, and he made a motion to quash it, which was overruled, and then filed a plea in abatement to Miller's attachment, denying the ground of attachment, to which Miller replied generally, and issue was joined under that plea. No other issue of fact was in the case. The jury was sworn to try "the issues joined, and inquire into the petitioner's claim," and rendered a verdict that Carney, by his second attachment, had a lien prior to Miller, and that the grounds of attachment stated in Miller's affidavit did not exist. This feature of the case presents perplexing questions. There was nothing proper to go to the jury but the issue on the plea in abatement. The jury, however, was sworn to inquire into Carney's claim. It is true, the Code does say that a jury shall inquire into the claim of the party claiming right over the plaintiff; but that means where an issue of fact is developed, and does not mean that where, as in this case, the contestant's claim is based on the legal effect of documents, a jury is to pass on that. Therefore it was wrong to swear the jury to try anything but the issue on the plea in abatement, and wrong to put before it the attachment and affidavit, and especially the bad affidavit and attachment. Of this I feel sure. But I do not feel so sure of the effect of this error. Does it prejudice, or is it harmless? I conclude that swearing the jury to pass on Carney's claim is simply surplusage, so to call it, and immaterial; and so with the introduction as evidence of the attachment papers. It may be said that this improper inquiry and evidence may have injured Miller by tending to confuse the jury as to the true issue under the plea in abatement, but I hardly think so. Improper evidence, if it might have injured the party, will reverse a verdict; but as the Issue under the plea, and the further inquiry as to Carney's claim, were distinct and separate, I do not see that such evidence could have reasonably influenced the jury as to the matter before it on the plea. From what I have said, it follows that the court, not the jury, should have found for or against Carney's lien. The court has not done so, except inferentially, by rendering judgment on the verdict. Is this reversible error? I think not. We find, on the papers, Carney's lien good; and the circuit court having, by overruling the motion for new trial and rendering judgment, done what it should have done, had it properly passed on Carney's lien, we conclude that this omission to find as to Carney's lien is not reversible error. Contention is made that Miller cannot question the effect of Carney's attachment documents, as he did not incorporate them in a bill of exceptions; but their legal effect would arise on motion for new trial. Miller excepts because he was refused an instruction that every person is presumed to anticipate and intend the probable consequences of known causes and conditions; hence, if White, who purchased logs of Miller, was insolvent (that is, did not have money to make good his promises of payments), and White knew of his insolvency and inability to pay, then his intention not to pay should be presumed; and if, when he purchased logs from Miller, he had no means by which he could meet the cash and other payments which he proposed and agreed to make, he was guilty of perpetrating fraud on Miller, and thereby fraudulently contracted the debt, and the jury should find for Miller. This involved the law question of what is a fraudulent contraction of debt, under our statute making that a ground of attachment. This question is touched, but not decided, in Wickham v. Martin, 13 Grat. 436. The law is that, where one buys property with intention not to pay for it, it is a fraudulent purchase, whether he make false representations or not. A purchaser's mere knowledge that he is insolvent, and that his ability to pay is, to say the least, doubtful, will not, alone, unattended with a positive intent not to pay, make the purchase fraudulent. True, the difference between buying without reasonable expectation or ground for expectation of paying, and buying with fixed intention of not paying, is not very plain. One who buys, with no present means, and with no reasonable ground to believe that he can raise a considerable sum to pay with. seems to contemplate, as a reasonable man. that he will not be able to pay. He would expect that, as a natural result. Still, there must be an intention not to pay, and whether there is a jury must say, under all the circumstances. Such intent "may be inferred by the jury from the circumstances and conduct of the vendee, not only in respect to the sale in question, but in other contemporaneous transactions." Hennequin v. Naylor, 24 N. Y. 139; 21 Am. & Eng. Enc. Law, 50; Benj. Sales, 442. Talcott v. Henderson, 31 Ohio St. 162, holds that: "A contract for the purchase of goods on credit, with intent on the part of the purchaser not to pay for them, is fraudulent; and if he has no reasonable expectation of being able to pay, it is equivalent to an intention not to pay. But where he intends to pay, and has reasonable expectation of being able to do so, the contract is not fraudulent, although the purchaser knows himself to be insolvent, and does not disclose it to the vendor, who is ignorant of the fact." If, in addition to insolvency, the purchaser makes misstatements of his ability to pay, or means of payment. there is fraud. "Here the rule is this: If he fraudulently misstates the facts,-material facts. the sale is voidable. False statements as to what property he owns, what debts be owes, what amount of business he is doing that his property is unincumbered, etc., come within this class." Benj. Sales, 441. "One who, knowing the insolvent character of his business, makes a statement that he is solvent, and does this to obtain credit, fraudulently contracts a debt, within the meaning of the statute. But the bare fact of insolvency at the time a debt was contracted does not make it fraudulent. It must be incurred with intent to defraud the creditor." 1 Shinn, Attachm. § 125. Tried by these principles, I do not think it was error to reject that instruction, as it told the jury that mere insolvency and inability to pay, known to White, would raise a presumption of an intent not to pay, and infallibly make the contract fraudulent on his part. The last question is whether the verdict, finding that the purchase was not fraudulent on White's part, is to stand. White came to Mason county from Indiana, where he resided, in June, 1896, stayed over night at a hotel, and could not pay his bill of 75 cents. He himself says that when he arrived he "may not have had a dollar." That month he purchased a mill at $5,200, agreeing to pay $1,000 down, the balance later; but, though put in possession, he paid nothing. He expected money from parties, as he says, but was disappointed. That month he borrowed little amounts from Kisar. After he purchased the timber, he bid on building a boat for $5,600, on which there would be a loss of $800; and yet this is a source from which he hoped to pay for the timber. He boarded with Mrs. Loomis, paid only a part of the board, and left the state in July in debt to her for board, and to her husband for work. He told this lady that he had money in a safe in Indiana, and had written to his daughter to send it, but she could not open the safe, and he would write to her to break it and send the money. The money did not appear. In June he offered to buy of Miller $15,000 worth of timber, without a dollar to pay for it, and did buy a lot of timber, coming to $3,713.43, and agreed to pay $1,000 cash, balance in 30 and 60 days, but paid nothing. He promised to send Miller a check for $1,000, but failed. Oral evidence and his letters show this. He then wrote Miller to draw a sight draft for it, which he did, but it was not paid. He then wanted Miller to take a time note for it. He had no money in bank at Point Pleasant, where he carried on milling, or elsewhere, to pay a check or draft. When negotiating with Miller, he told Miller that he had $1,000 to pay cash, but wanted time for the balance. He admitted as a witness that he did not have $1,000, or any money, but expected to get money. He represented to Miller that he had carried on extensive milling in Indiana, had sold out, and would get money from there. He promised Miller cash, then a check, then to pay a draft, and then sought to get further time; and we may fairly say that this "putting off" was to get possession of the timber, as he did, it being sent to him from Parkersburg. White's letter requesting Miller to accept his note at 30 days and take up the draft is irrefutable evidence that he had no money, as many other circumstances show. In fact, he so admitted on the witness stand. In a letter he said he expected to get money from building a boat, which he never built, and again he says he expected money from a sale of the timber. If he had told Miller that he had no money, but mere expectation of it, would Miller have sold timber to him? He suppressed his insolvency and asserted solvency. To induce Miller to sell, he told him that he had bought timber of Carney. So he had, to the amount of $1,905, and gave Carney an accepted draft, June 24th for down payment, $635, and two time notes, and never paid a cent. Carney's affidavit charged White with fraud in that purchase from him, and with false representation that he had money due him from some one in Indiana, and would get it in a few days. This purchase was shortly before that of Miller. The same circumstances give hue to both. I am at a loss to see how Carney can say that White fraudulently contracted the debt to him, and turn around and say that no fraud exists in the Miller transaction. Miller swore to these statements and representations of White, and White, though on the stand afterwards, did not deny Miller's evidence. White's own evidence shows that he had no means, but a mere hope of getting money, with no basis shown on which to found that hope,-a mere hope to sell the timber. That he made the statement that he had money to pay the down $1,000 is sworn to by Miller, not contradicted, and is verified by the fact that he agreed to pay cash, and then promised a check, which a letter to Miller shows, and then authorized a sight draft. This alone is a representation of having the money. This shows that he held out to Miller that he had money to pay the $1,000, even if Miller's evidence, uncontradicted, were not in the case. He admits he did not tell Miller that he merely relied on some deal to get the money. He expected to sell the timber. He admits he had no money in bank to pay check or draft. And I see just now that he admits that he told Miller he had sold property in Indiana, from which he expected to get money to pay him; and he admits that this was untrue, as he says his son-in-law owned a farm, and he expected him to sell, and come to this state to live. He had no interest in the farm, further than he had lent his daughter $75 or $100. He admits he had only $120 in that safe in Indiana. Did he have that? It never appeared. Here we find a man, coming to this state, making large purchases of mills and timber within a few weeks, amounting to $10,000, agreeing to pay cash part payment, paying not a cent, purchasing on false statements of having means to pay, ready money to pay the cash installments, and yet without property or money,-utterly so; so utterly poor that he had to borrow money from others to pay his day laborers, and money to go the short trip to Parkersburg to buy Miller's timber, and without money to pay hotel or board bill. These facts are admitted by White on the stand as a witness, and proven clearly by uncontradicted testimony. Slow as I am to overthrow verdicts, must say that this verdict is utterly indefensible, because plainly. palpably contrary to the very great preponderance of the evidence. Indeed, the facts being shown even by White's own evidence, the verdict is contrary to law on those facts. And therefore I may say we do not have to perform the delicate function of setting aside a verdict as contrary to evidence, for courts always set aside verdicts that are contrary to law on admitted facts. On these facts, the jury departed from the instructions given by the court. For some reason or other, the jury seems to have become confused in the mazes of the case, or mistaken the law. Even under the syllabus in Young v. Railroad Co., 44 W. Va. 218, 28 S. E. 932, that "the verdict of a jury will be held sacred unless there is a plain preponderance of credible evidence against it, evincing a miscarriage of justice from some cause, such as prejudice, bias, undue influence, misconduct, oversight, or misconception of the facts or law," we would have to overrule this verdict on the plea in abatement. The evidence on Miller's side is credible,-virtually uncontradicted; the facts are shown by White's evidence; and the verdict is contrary to law. Judgment reversed, verdict set aside, new trial awarded, and remanded. (46 W. Va. 302) SOUTHERN BUILDING & LOAN ASS'N v. PAGE et al. (Supreme Court of Appeals of West Virginia. April 8, 1899.) WARRANTY DEED-TITLE CONVEYED-RIGHTS OF 1. A general warranty deed, without limitation, reservation, or exception, conveys all the grantor's right, title, and interest, both legal and equitable, in and to the property embraced therein, including the right of retention of the title to secure the unpaid purchase money due and owing from a prior recorded title-bond purchaser of an undivided interest in such property, and operates as a transfer of such unpaid purchase money to the grantee; and after due recordation of such deed, and notice thereof, such title-bond purchaser cannot pay such unpaid purchase money to his vendor, the grantor in such absolute deed, except at his own risk and peril, but must pay the same to the grantee before he can demand conveyance of the retained legal title. Turk v. Skiles, 30 S. E. 234, 45 W. Va.. 2. It is a fraud upon the grantee in such deed, after delivery and recordation thereof, for the grantor to receive payment of such unpaid purchase money; and such title-bond purchaser must take notice of the recorded condition of the legal title, and he cannot take advantage of such fraud without becoming a participant therein. 3. The subsequent deed of a grantor, who has by a prior deed conveyed the legal title in trust, can operate only to convey the equity of redemption until such prior deed is released.. 4. If a person is induced to advance the money to pay off a trust lien on real estate on the assurance that the title to such property is otherwise clear, and take a new trust to secure the money so advanced, and it afterwards turns out that the title to such real estate is incumbered by title bond, judgment lien, or otherwise, a court of equity will keep the original trust alive as a security for the money so advanced. 5. In such case the person advancing the mon ey is not a volunteer or an intermeddler, but is the confiding dupe of the fraudulent representative of the borrower. 6. The subsequent incumbrancer or title-bond purchaser cannot take advantage of the fraudulent practices of the borrower, nor object to the restoration of the prior trust, as he is not injured thereby; but he is left in the same condition he was in prior to the attempted fraud, and this is all he is entitled to ask of a court of equity. English, J., dissenting. (Syllabus by the Court.) Appeal from circuit court, Cabell county; E. S. Doolittle, Judge. Suit by the Southern Building & Loan Association against J. Harvey Page and others. Decree for defendants, and plaintiff appeals. Reversed. Simms & Enslow, for appellant. Campbell, Holt & Campbell, for appellees. DENT, P. The Southern Building & Loan Association appeals from a decree of the circuit court of Cabell county, refusing to subject certain property of defendant W. C. Miller to payment of its lien. Defendant J. Harvey Page, by deed dated the 11th day of March, 1892, conveyed the whole property in controversy, in trust, to secure the plaintiff a loan of $5,000. An undivided half of this property was claimed by Miller by virtue of a title bond placed on record some time prior to plaintiff's deed. The following further statement of facts is taken from the brief of plaintiff's attorneys, to wit: "Prior to March, 1899, J. Harvey Page and W. C. Miller were engaged in business in Huntington under the name of Page & Miller, and as such partnership had borrowed from the Ohio Valley Building & Loan Association the sum of $3,900. Under contract made between said Page & Miller upon the 6th day of February, 1890, J. H. Page agreed, in consideration of his partner (W. C. Miller) paying off the amount of a lien given by Page upon the property in controversy to the Ohio Valley Building & Loan Association at $3,900, that then he (Page) would under certain conditions transfer an undivided one-half interest in the property on the Ohio river in the city of Huntington to the said W. C. Miller. It appears from the testimony of Miller that Miller paid all the sums due the Ohio Valley Building & Loan Association, with the exception of $1,541.26. Whether these dues were paid by the firm of Page & Miller out of the firm fund, or the exact amount of dues paid, is not certain; but on the day of settlement with the Ohio Valley Building & Loan Association of the partnership on the property, there was the sum of $1,541.26 due it. While the partnership of Page & Miller still existed, and while Page had the authority to sign the firm name, J. H. Page applied to the Southern Building & Loan Association for a loan upon certain stock standing in said association in the name of Page & Miller, on which stock different payments had been made by Page & Miller from time to time. When Page applied for this loan on the Page & Miller stock, he was told that, as he wanted to give his individual property as security, he had better have the stock transferred to, his individual name, which was done by Page transferring the stock in the name of Page & Miller to himself, and having a new certificate issued in the name of J. H. Page. At the time this loan was made by the Southern Building & Loan Association, J. H. Page swore that the title to the property was in him, that it was not questioned, and that the only incumbrance on it was $1.500, which was the incumbrance of the Ohio Valley Building & Loan Association. At the time this statement was made the existence of the title bond made by Page & Miller, which was the foundation of Miller's claim, bearing date the 6th day of February, 1890, and recorded February 25, 1890, was unknown to the Southern Building & Loan Association or to its attorneys. Under this title boud and contract Miller had assumed to pay the entire amount due the Ohio Valley Building & Loan Association on the property, so as to clear the same of all incumbrances, in consideration of the sale to him of an undivided one-half interest. This contract provides that if the said Miller in any case should fail to pay the entire balance due the Ohio Valley Building & Loan Association, and have the trust deed released, then the said Page was to discharge the balance remaining, and cause the said deed of trust to be discharged and released, and should convey to the said Miller such proportion of the undivided one-half interest as the book value of the 30 shares of stock by the said trust deed named at the time of Miller's failure bore to the face value of the said bond. The face of the bond was $3,900. The balance due at the time of Miller's failure to pay was $1,541.26, discharged out of the funds furnished by plaintiff." Plaintiff claims it is entitled to enforce its lien against the whole of the property involved for two reasons: (1) Because defendant Miller, by his conduct, is estopped from setting up his title bond; and (2) by virtue of subrogation to the released lien of the Ohio Building & Loan Association. As to the first it is sufficient to say that Miller's title bond was on record, and there is nothing in this cause showing that, prior to the loan made by the plaintiff, he did anything to mislead the plaintiff as to the title of the property. Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411. In Bigelow, Estop. p. 594, it is said: "It is settled law that standing by in silence will not bar a man from asserting a title of record in the public registry or other like office so long as no act is done to mislead the other party. There is no duty to speak in such a case." In a note numerous cases are cited to support the text. It is hardly necessary to repeat them here, as the records of the proper office are the best notice of title, and, if they speak for a person, he is under no obligation to speak for himself. The facts and circumstances are not 33 S.E.-22 sufficient to justify relief on the grounds of estoppel. Nor is it necessary to subrogate plaintiff to the released lien of the Ohio Building & Loan Association. Section 2, c. 72, Code, referring to general warranty deeds, provides: "Every such deed, conveying lands, shall, unless an exception be made therein, be construed to include all the estate, right, title and interest, both at law and in equity, of the grantor in or to such lands." The deed of defendant Page to secure plaintiff was such a general warranty deed, and conveyed to the trustee, Martin, all the estate, right, title, and interest whatever, both in law and equity, of the grantor, Page, in and to the property. It conveyed, not only his undivided half, but also the undivided half of Miller, subject to the terms of the title bond; thus fully investing the trustee with the legal title to Miller's half until Miller should comply with the conditions of his bond, which was to pay off the debt due the Ohio Building & Loan Association, at that time amounting to $1,541.26. In short, by his deed, Page substituted the plaintiff to all his reserved rights in the title bond to Miller. Plaintiff thereby became entitled to the provision that, if Miller failed to pay off any portion of the balance due the Ohio Building & Loan Association, he was only to have his fair share of the property, and also the covenant that Miller would pay off and discharge the association lien, with the right to compel him to do so. The payment of the lien out of the funds furnished by the plaintiff inured to the benefit of its trust deed. It matters not who is regarded as making the payment; for, if Page had made the payment out of his own funds, other than those furnished by the plaintiff, such payment would inure to the benefit of the plaintiff, for he had not only obligated himself to do so, but it is the settled law that where a person makes a general warranty deed for land, and afterwards acquires any manner of interest therein from others, it inures by estoppel to the benefit of his grantee. Bigelow, Estop. 384. The release, therefore, of the trust deed of the Ohio Valley Building Association inured to the benefit of the plaintiff, and not to Page, and he had neither the moral, legal, nor equitable right to receive or demand from Miller the sum paid in discharge of such lien, but all his right thereto was vested in the plaintiff, and the legal title to the whole property was vested in the trustee for the plaintiff's benefit, subject, alone, to the title bond. Nor had Miller any longer the right to pay Page the $1,541.26 and compel a conveyance of the property. Page had nothing left to him but a mere equity of redemption, and all that Miller took by Page's deed was such equity of redemption, which in no manner could effect the legal title vested for plaintiff's benefit and security. Page's deed adds nothing to Miller's title bond, and cannot do so until the legal title is released from plaintiff's llen. Miller now holds nothing in the prop |