Bonney v. Taylor

• Decision Date: 15 November 1886
• Citation: 1 S.W. 740,90 Mo. 63
• Parties: BONNEY and others v. TAYLOR.
• Court: Missouri Supreme Court

1 S.W. 740

90 Mo. 63

BONNEY and others v. TAYLOR.

Supreme Court of Missouri.

November 15, 1886.

EJECTMENT — TITLE — EVIDENCE — VOLUNTARY CONVEYANCE — DEBTOR.

Where a father in embarrassed circumstances made a voluntary deed of land to a daughter, which was duly acknowledged and recorded, but the possession was retained by him, and he subsequently made a deed to a son of all his property, including the land conveyed to the daughter, with the assent of his creditors, on condition that the son would support him during his life, and assume the payment of his debts, held, in an action brought by the daughter to recover the possession of the land, that if there was no evidence to show that she was a party or privy to any fraud in the execution of the deed to her, and that the son had either actual or constructive notice of the deed to her at the time of the conveyance to him, that she was entitled to maintain the suit, although she had never had possession of the land.

Appeal from Lewis circuit court.

Action to recover possession of land. There was a judgment for plaintiffs, and defendant appealed. The facts are stated in the opinion.

Blair & Marchand, for respondents, Bonney and others. Anderson & Scofield, for appellant, Taylor.

SHERWOOD, J.

The plaintiffs brought ejectment for 40 acres of land formerly owned by Jeremiah Taylor, their ancestor. Being in embarrassed circumstances, and largely indebted, to such an extent that it was understood that his liabilities would consume all of his estate, he conveyed the same to the several members of his family, the 40 acres in dispute to the plaintiffs. There were six to ten of these voluntary conveyances, which were executed about the middle of February, 1877, and filed for record before a subsequent conveyance made by the same grantor to the defendant, to be presently noticed. There can be no question that the purpose of the grantor, Jeremiah Taylor, was to hinder or delay his creditors, but in this fraudulent purpose there is no evidence that the grantees in the voluntary conveyances participated.

On the sixth of March, 1877, proceedings in bankruptcy were instituted by Cole Bros., of St. Louis, in the United States district court of St. Louis, against Jeremiah Taylor, based in large part on the very deeds he had made. Process issued, and was served upon him. He called to his aid an attorney, who advised that he was in no condition to make said deeds, and that the grantees should reconvey to him at once. His son-in-law, Mr. Patterson, and his son J. B. Taylor, reconveyed. A deed was written for plaintiffs to reconvey. They did not make it. What further to do, amid the financial ruin, was the question with Jeremiah Taylor and his family. It was proposed and advised that, as the father and mother were too advanced in years to cope with a debt so large, their children should take the whole estate, provide for the parents a comfortable home and support the remainder of their days, and meet the debts. This proposal was declined by Messrs. Patterson, J. L., and I. B. Taylor; was accepted by William I. Taylor, defendant. Thereupon, Jerry Taylor and wife, on the thirtieth of May, 1877, conveyed by general warranty deeds his landed estate, including the 40 acres in question, to defendant, who assumed the payment of said debts. Time was given him by the creditors, and a dismissal of the bankrupt proceedings secured. During the life-time of Jeremiah Taylor he remained undisturbed in his old home, and his widow is now there with her son, the defendant. When Jeremiah Taylor made this voluntary deed to plaintiffs he retained the actual possession of the land in question, and on making the deed to defendant of the thirtieth of May, 1877, delivered and surrendered to him the immediate actual possession thereof, and he has ever since held and enjoyed it. Plaintiffs were never in possession.

On this state of facts the court declared the law thus: (1) It is admitted that defendant, at the time he contracted with Jerry Taylor, had full knowledge of the existence of plaintiffs' deed. There is no evidence that plaintiffs were parties or privies to any fraud in the execution of the deed to them. Therefore it is immaterial whether at the time of the execution of the deed to them said Taylor was or not indebted, or in failing circumstances. (2) That the evidence of the plaintiffs having shown that their deed was filed for record before J. Taylor made his deed to defendant, and the evidence of defendant showing that defendant at the time he took the deed from J. Taylor for the land in controversy had actual notice of the deed to plaintiffs for the land in controversy, and the evidence failing to show that plaintiffs were parties or privies to any fraud upon the part of J. Taylor in making the deed to plaintiffs for the land in controversy, plaintiffs are entitled to recover the possession of said land in this suit.

The chief question presented by the record is the correctness of these declarations.

The determination of this question requires an examination of two sections of the statute relating to fraudulent conveyances, which are as follows:

"Sec. 2497. Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, * * * made or contrived with the intent to hinder, delay, or defraud creditors, * * * or to defraud or deceive those who shall purchase the same lands, * * * shall be from henceforth deemed and taken, as against said creditors and purchasers, prior and subsequent, to be clearly and utterly void."

"Sec. 2498. No such conveyance or charge shall be deemed void, in favor of a subsequent purchaser, if the deed of conveyance shall have been duly acknowledged, or proved and recorded, or the purchaser have actual notice thereof at the time of the payment of the purchase money, unless it shall appear that the grantee in such conveyance, or person to be benefited by such charge, was party or privy to the fraud intended."

Section 2 of the Laws of 1825, pp. 401, 402, is a substantial transcript of section 2, c. 5, 13 Eliz., and of section 2, c. 4, 27 Eliz., and there is no such section to be found in the Laws of 1825 as section 2498. That section is first found in the Laws of 1845, and in the margin are the very significant words, "Qualification of Preceding Section as to Subsequent Purchasers." This marginal explanation continues in Rev. St. 1855, and Gen. St. 1865. Taking this statute as res integra, it seems to me that it needs no construction, — that it is its own interpreter; for construction has no office to perform where the language employed is plain and unambiguous.

Section 2497 affords protection to two classes of persons: (1) Creditors, who are protected against "every conveyance, assignment," etc., "made and contrived with the intent to hinder, delay, or defraud" them; (2) purchasers, who are protected against "every conveyance," etc., "made or contrived with the intent to defraud or deceive those who shall purchase the same lands," etc. And in both classes of cases the conveyance, if made with either contraband intent, is declared, "as against said creditors and purchasers, prior and subsequent, to be clearly and utterly void." But right here section 2498 comes in with its important qualification, declaring in the clearest possible terms that "no such conveyance or charge shall be deemed void, in favor of a subsequent purchaser, if the deed or conveyance shall have been duly acknowledged," etc., "or the purchaser have actual notice thereof, * * * unless * * * the grantee in such conveyance * * * was party or privy to the fraud intended." This language is so plain that it needs no adventitious aids of argument or gloss to explain or enforce its manifest provisions, and fully justifies the declarations of law already quoted, and but for decisions heretofore made by this court, and now relied on here, such a work would be one of supererogation.

The case of Howe v. Waysman, 12 Mo. 169, was one where Waysman and...