Carr v. Parker

• Decision Date: 31 May 1881
• Citation: 10 Mo.App. 364
• Parties: JAMES CARR, Respondent, v. THOMAS J. PARKER ET AL., Appellants.
• Court: Missouri Court of Appeals

10 Mo.App. 364

JAMES CARR, Respondent,

v.THOMAS J. PARKER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

May 31, 1881.

1. Where a judgment debtor's property is such that it cannot be taken on execution, the judgment creditor, after having exhausted his legal remedies, is entitled to equitable relief.

2. Where a judgment debtor has fraudulently conveyed his personal property, and the judgment creditor levies upon it, and, an indemnifying bond being demanded, is unable to give it, that he has no lien upon the property will not prevent him from recovering in a suit to set aside the fraudulent conveyance and subject the property to the satisfaction of the execution.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

JOY & SAMPSON, for the appellants: The plaintiff has a complete remedy at law, and has therefore no standing in a court of equity.-- Merry v. Fremon, 44 Mo. 521; Kent v. Curtis, 4 Mo. App. 121. The decree is not warranted by the petition nor by the evidence, and is impossible of performance.-- Jones v. Hart, 60 Mo. 357; O'Reilly v. Nicholson, 45 Mo. 163; Potter v. McDowell, 31 Mo. 62.

H. D. WOOD, for the respondent: Equity has jurisdiction at the suit of a judgment creditor to set aside fraudulent conveyances of property made by a judgment debtor, or to reach assets of the debtor which are in any manner fraudulently vested in the name of another, and the property which may thus be reached embraces everything which may be subject to levy and sale at law.-- Freem. on Ex., pghs. 424, 511; Bump's Fr. Conv. 508-511, chap. 22; Sheppard v. Joerson, 12 Ala. 99; Hill v. Ormsber, 14 Ill. 233; Steere v. Hoagland, 50 Ill. 377; Stewart v. Caldwell, 54 Mo. 536. A lien upon the property is not essential to give equitable jurisdiction.-- Alnutt v. Leper, 48 Mo. 321; Merry v. Fremon, 44 Mo. 521.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that plaintiff, in 1877, recovered judgment in the Circuit Court of the city of St. Louis, against defendant Thomas J. Parker, on an indebtedness contracted in 1874, for $21.50; that one execution issued on this judgment was returned nulla bona, and that an alias execution was levied in September, 1878, on the tug Alice Parker; that defendant Parker, Jr., the son of defendant Thomas J. Parker, in pursuance of a scheme between the two defendants to prevent plaintiff from collecting his judgment, then and there gave notice to the sheriff that he claimed the tug; that the tug was appraised at $3,000, and the sheriff demanded a bond of $6,000 of plaintiff, which he was unable to give on account of poverty, whereupon the plaintiff released the tug; that, after contracting the debt in judgment, the older defendant conspired with his son to defraud his creditors, and in pursuance of this plan, without any consideration, conveyed to the younger defendant a large amount of personal property, and amongst other things, a steam tug called the Charles F. Nagel, worth $5,000; that in pursuance of this fraudulent scheme, in the spring of 1877, the father caused the tug Parker to be built, at a cost of $7,000, with funds of the father; and, by agreement between father and son, the Parker was registered as the property of the son; that all other personal property of the father has been placed beyond the reach of execution, and that he has no other property than the tug Parker out of which the money can be made, in whole or in part, on plaintiff's judgment.

The prayer is that the title of the son to the Alice Parker be declared void; that defendants be enjoined from encumbering or transferring the tug; that the property be taken possession of by the sheriff and sold, and the proceeds applied to plaintiff's demand and the costs of this suit.

The answer of defendants was a general denial. The decree was for plaintiffs, according to the prayer of the petition, and it directs defendant Thomas J. Parker to deliver the tug Parker to the sheriff.

1. It is contended that the facts in evidence did not warrant the court in finding that the tug belonged to defendant in the execution, or had been fraudulently transferred. Unless we are to discredit the witnesses for plaintiff, and to take as absolutely true the testimony of defendants, it appears from the evidence that Parker, Sr., owed $6,000 to a woman named Moore, in 1874, for which he executed three notes of $2,000 each, at one, two, and three years, on all of which judgments have been recovered, and one of which is the note that is the foundation of the plaintiff's judgment; that Parker, Sr., swore that he would never pay these notes; that, in 1875, he was reputed to be well off; that he had made money freely in the business of ““dropping” rafts with the tug Nagel, which he purchased in 1874. Parker, Jr., was twenty-one in September, 1874; up to the age of sixteen, he was at school; after that he worked with his father on the tug. He was her pilot in 1874. He complained that his father gave him little or no money. In the spring of 1875, the father transferred the tug to the son, the price named in the bill of sale being $3,500. The boat was run and the business was carried on just as before; the father paid the hands, bought the coal, and, in all respects, continued to act as if the tug and the business were his own. He said to one witness that he had put the tug in his son's name to escape liability for any damage she might do in harbor. To another witness who was in money troubles, he said, in a joking way: “Why don't you do as I have done; put your property in another name, so they can't get at it?” In 1877, the contract was made for building the Parker. The contract was made in the name of the son, and the contractors were paid ostensibly with the son's money. The son was never known to have any means of his own, except so far as he might be supposed to own these boats. He lived with the father, and apparently worked for him on both boats. When the father bought the Nagel, in 1874, the father boasted that he was worth $50,000. His bank-account for the years 1872, 1873, 1874, and 1875 shows deposits to the amount of over $12,000. The father carried rolls of money in his pocket whilst the son and father were working on the boats, and paid all demands. The son was never seen to have money, or to pay expenses of either boat.

The father testified that he did not remember what he paid for the Nagel-- couldn't tell whether it was $3,500 or $500; that he probably lost money whilst running her; that he did not deposit any of his earnings, whilst running her, in the Bremen Bank, though his bank-account shows deposits to the amount of over $9,000 in 1874, in the Bremen Bank, and it is not pretended by him that he had any other source of income. He says his son paid him $3,000 for the boat, cash, and that he kept this money...