Both J. S. Cox and his wife state that the last money he borrowed from her was in 1882, which must have been about seven years before the note for one thousand dollars was executed, which was secured by said deed of trust, they both state that a memorandum book was kept in her drawer by said Margaret J. Cox on which the amounts she loaned him, and the amounts he repaid her were set down, but that this memorandum book had been lost about two years before said note was executed, and that for that reason they could not ascertain the exact amount, and she agreed to take the note for one thousand dollars secured by said trustdeed. The cause was referred to a commissioner who was directed to ascertain the liens existing against said land, their nature and priority and in whose favor they existed, who ascertained and reported said trust-debt of one thousand dollars to be the second lien upon said land, if the court should hold that said trust-deed was valid, a judgment in favor of W. A. Parsons for fifty dollars with interest and costs, the first lien, the judgment of plaintiff for one hundred and one dollars and sixty cents with interest and costs, the third lien upon said land, and the judgment of Wm. II. Wolfe, cashier, for one hundred and two dollars and eighty seven cents with interest and costs, the fourth lien binding upon said land. The court in acting upon said report excluded the depositions which had been taken before the commissioner by the plaintiffs because no special notice had been given by the plaintiff of the time and place of taking the same, decreed that said trust-deed was a valid and binding lien upon said land, confirmed the report of the commissioner as to the order and priority of said liens and directed a sale of said land to satisfy the same in accordance with the priority so ascertained, and from this decree this appeal was taken. It is assigned as error that the court sustained the exception to the plaintiff's depositions for the reasons above stated, which point I regard as well taken, as it has for years been the practice in Virginia and in this state to take depositions before a commissioner in reference to a matter referred to him without giving any notice other than the general notice of the time and place of taking the account. Sands in his Suit in Equity p. 627, § 536, says: "Under the general notice given by the master commissioner when the order or decree is placed in his hands, the master or commissioner may take the depositions of witne-ses without giving special notice to the parties of their being taken, see also the case of McCandlish, Adm'r &e v. Edloe et als, 3 Gratt. 330, where it is held 3d point of syllabus that in taking an account the commissioner may take the depositions of witnesses to enable him to act upon the subject under his general notice, and a special notice is notnecessary." See also Barton's Chancery Practice vol. 2. p. 641. Returning again to the question as to the validity of the trust-deed executed by said J. S. Cox to secure his wife the note for one thousand dollars we call attention to the case of Maxwell v. Hanshaw, 24 W. Va. 405, where this Court held that "A transfer of property either directly or indirectly by an insolvent husband to his wife during coverture is justly regarded with suspicion, and unless it clearly appears that it was entirely free from any wrong intent or purpose to withdraw the property from the husband's creditors it will not be sustained. "In such transfers there is a presumption against the wife in favor of the husband's creditors which she must overcome by affirmative proof." In the case under consideration the circumstances which lead us to the conclusion that said deed of trust was executed with intent to hinder, delay and defraud the creditors of said J. S. Cox may be summed up as follows: First. The intimate relation of husband and wife existed between the grantor and the cestui que trust. Second. The claim was barred by the statute of limitations at the time said note and deed of trust were executed. In support of this proposition see Well's Separate Property of Married Women, § 662, where it is said, "If the husband receives moneys of his wife under an agreement to refund them, it seems in New York that the statute runs at the time of the agreement in the absence of any specified time of repayment-citing 3 Hun. New York Supreme Court 350, where the same is clearly held, and our statute expressly provides, section 15, c. 66, Code, that a married woman may sue without joining her husband, where the action is between herself and husband, and where it concerns her separate property. As to this she is under no disability and the statute of limitations does not apply. See sec. 16, c. 104, which expressly excepts suits in regard to her separate estate. Third. The declaration of said grantor to E. M. Riddle that he had not executed said trust to defraud any of his creditors out of his honest debts, but that he had executed two notes to C. E. Hogg for attorneys fees that he considered unjust and that he did not think he had any right to and would not pay them, that there were other agreements between him and Hogg that Hogg had not complied with." Fourth. The deed of trust was executed during the pendency of the suit on one of said notes he had executed to said Hogg and said trust was recorded only fourteen days before the judgment was obtained. Fifth. Although said J. S. Cox and his wife both state that an account was kept between them of the amount loaned to her husband, and returned to her by him at different times, said memorandum book was not produced. Sixth. Said money was used by the husband in trading in stock and in law suits and the law would presume a gift instead of a loan. Applying to these facts and circumstances the legal principles announced in the authorities above cited my conclusion is that while said deed of trust must be regarded as good enough between the partics thereto, it can not be allowed to take precedence over the claim of the plaintiff or the other bona fide creditors of said J. S. Cox and must be held void as to the judgment of the plaintiff C. C. Miller, the decree complained of must be reversed and the cause remanded, with costs to the appellant. INDEX. ANSWER. Answers and other pleadings, except in cases of injunction, can only ABATEMENT. See Judgment 5. ACTION. See Payment 1. ADVERSE POSSESSION, See Landlord and Tenant 5. AFFIVAVIT. See Attachment 1-6, 8. AMENDMENT. See Reversal of Judgment 5; Trusts and Trustecs6, 7. APPEAL. Action before a justice by York against Bert Free. An entry on the ASSESSMENT. Under the assessment laws of this state property and the valuation ASSIGNMENT. 1. A check operates as an equitable assignment pro tanto from the 2. A general assignment for the benefit of creditors does not de- See Payment 4, |