1 S.W. 740 (Mo. 1886), Bonney v. Taylor

Citation:1 S.W. 740, 90 Mo. 63
Opinion Judge:Sherwood, J.
Party Name:Bonney et al. v. Taylor, Appellant
Attorney:F. L. Schofield and H. S. Lipscomb for appellant. Blair & Marchand for respondents.
Judge Panel:Sherwood, J. Henry, C. J., and Black, J., concur; Norton and Ray, JJ., dissent.
Case Date:November 15, 1886
Court:Supreme Court of Missouri
 
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Page 740

1 S.W. 740 (Mo. 1886)

90 Mo. 63

Bonney et al.

v.

Taylor, Appellant

Supreme Court of Missouri

November 15, 1886

Appeal from Lewis Circuit Court. -- Hon. Ben. E. Turner, Judge.

Affirmed.

F. L. Schofield and H. S. Lipscomb for appellant.

(1) Jeremiah Taylor was, at the time the voluntary deed to the plaintiffs was made, indebted to the extent of insolvency, and the conveyance is void. Bump on Fraud. Con. (3 Ed.) 281, and authorities cited. (2) If his failing circumstances resulted in insolvency the deed is void. Authorities, supra. (3) Plaintiffs are not defending their possession of property under a voluntary deed, but ask its enforcement against defendant, who holds under a deed for value, and in his person represents the creditors of plaintiffs' insolvent grantor. (4) Inquiry into the good faith of the grantee is only necessary where there is a valuable consideration for the transfer. The mere acceptance of the transfer without a valuable consideration is of itself sufficient evidence of a participation in the debtor's fraudulent intent. The only consideration good within the meaning of the statute of frauds is a valuable consideration. It is the innocent purchaser and not the innocent donee that is protected. The only question is the motive of the giver and not the knowledge of the donee. Bump on Fraud. Con. (3 Ed.) 198, and authorities cited, and 268, and authorities cited. (5) The deed to plaintiffs was made with fraudulent intent. When the grantor was engaged in making this, with other deeds, he said to witness, Million, "That the mill company (of which he was a member) is swamped; he was looking for trouble and he wanted to deed his lands to his children." The deed being fraudulent in fact is, as Judge Scott says in Howe & Wallace v. Waysman, 12 Mo. 172, "as though it had not been made. The property is where it was before anything was done." Henderson v. Dickey, 50 Mo. 161. The burden of proof was severely on plaintiffs to show that Jeremiah Taylor, their grantor, was, at the time he made the deed, in a condition financially to give away his property. A fraudulent deed will not be enforced against a purchaser for value in possession, and we submit never was enforced except as against a fraudulent grantor who is estopped from setting up his own fraud. Howe et al. v. Waysman, 12 Mo. 169; Shaw v. Tracy, 83 Mo. 224.

Blair & Marchand for respondents.

Sherwood, J. Henry, C. J., and Black, J., concur; Norton and Ray, JJ., dissent.

OPINION

[90 Mo. 65] Sherwood, J.

The plaintiffs brought ejectment for forty acres of land formerly owned by Jeremiah Taylor, their ancestor. Being in embarrassed circumstances, and largely indebted, 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 forty 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.

Page 741

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 [90 Mo. 66] is no evidence that the grantees in the voluntary conveyances participated.

On the sixth of March, 1877, proceedings in bankruptcy were instituted by Cole Brothers, 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 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 re-convey to him at once. His son-in-law, Mr. Patterson, and his son, J. B. Taylor, re-conveyed. A deed was written for plaintiffs to re-convey. They did not make it. What farther to do amidst 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...

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