Buckley v. Maupin

• Decision Date: 08 March 1939
• Docket Number: 35601
• Parties: Florence Buckley, Appellant, v. Gladys Maupin, Administratrix of the Estate of A. N. Welborn, Ella M. Jordan, J. F. Jordan, her husband, Gladys J. Maupin, L. v. Maupin, her husband, C. A. Gregory, Trustee, and G. W. Gregory, Trustee
• Court: Missouri Supreme Court

125 S.W.2d 820

344 Mo. 193

Florence Buckley, Appellant, v. Gladys Maupin, Administratrix of the Estate of A. N. Welborn, Ella M. Jordan, J. F. Jordan, her husband, Gladys J. Maupin, L. v. Maupin, her husband, C. A. Gregory, Trustee, and G. W. Gregory, Trustee

No. 35601

Supreme Court of Missouri

March 8, 1939

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Affirmed.

T C. Owen and Russell Garnett for plaintiff.

(1) The petition states a cause of action for fraud and conspiracy. As against a demurrer, all matters of fact well and sufficiently pleaded are taken as true, and if from those facts it appears that plaintiff is entitled to equitable relief, the demurrer should be overruled. Butler v Lawson, 72 Mo. 227; Ulrici, Admr., v. Papin, 11 Mo. 42; State ex rel. Central State Life Ins. Co. v. McElhinney, 90 S.W.2d 124. (a) If the allegations of the petition entitle the plaintiff to any measure of redress, a deaf ear will not be turned to her complaint simply because she thinks justice should be dispensed to her in a particular way other than, and different from that to which she is actually entitled. Biddle v. Ramsey, 52 Mo. 159. (b) Neither does the general rule of law, that a simple creditor cannot maintain a suit in equity to set aside a conveyance of a debtor as fraudulent until he has reduced his demand to judgment, mitigate against plaintiff's suit in this cause. It is alleged that her claim is undisputed and undenied that the estate is now rendered insolvent by the fraudulent acts of defendants, and that it would be useless for her to proceed at law. Farmers & Traders Bank v. Kendrick, 108 S.W.2d 64; Pendleton v. Pendleton, 49 Mo. 565; Luthy v. Woods, 1 Mo.App. 171. (2) There is no improper joinder of several causes of action in plaintiff's petition. The same general action for fraudulent conspiracy against all defendants is the only cause of action either stated or attempted to be stated in plaintiff's petition. So long as the matters therein complained of can be conveniently disposed of together and a multiplicity of suits thereby avoided there is no misjoinder of causes of action. 21 C. J., p. 416, sec. 434; Perkins v. Baer, 95 Mo.App. 78.

Musser & Musser, Chas. K. Hackler and M. D. Abner for defendants.

(1) Plaintiff had and has an adequate remedy at law. Bragg v. Specialty Co., 34 S.W.2d 188; Benton County v. Morgan, 163 Mo. 678; Coleman v. Hagey, 252 Mo. 127; Mullen v. Hewett, 103 Mo. 639; Davidson v. Dockery, 179 Mo. 687; Gilson v. Carroll, 97 S.W.2d 149; Paper Co. v. Box Co., 97 S.W.2d 866. (2) Before plaintiff could maintain her action, it was and is necessary that she first reduce her claim to judgment, in which a right to trial by jury exists. Davidson v. Dockery, 179 Mo. 687; Brown v. McKeown, 265 Mo. 337; Coleman v. Hagey, 252 Mo. 102; Mullen v. Hewett, 103 Mo. 650. (3) "Courts of equity are not tribunals for the collection of debts . . . and it cannot be asserted with certainty that anyone is an actual and subsisting creditor, until a judgment has been obtained on his claim." Quoted from Coleman v. Hagey, 252 Mo. 102.

Ferguson, C. Hyde and Bradley, CC., concur.

OPINION

FERGUSON

This is a suit in equity, in the nature of a creditor's bill, to set aside certain alleged fraudulent conveyances of land, situate in Johnson County, and subject said land to the payment of an alleged indebtedness, of the original grantor, to the plaintiff herein. Defendants' demurrer to the petition was sustained. Plaintiff "declined and refused" to plead further whereupon judgment was entered dismissing the petition and plaintiff has appealed. The defendants are Gladys Maupin, administratrix of the estate of A. N. Welborn, deceased, Ella M. Jordan, a daughter of Welborn, her husband, J. F. Jordan, Gladys J. Maupin, also a daughter of Welborn, her husband L. V. Maupin, C. A. Gregory, trustee (in a deed of trust), and G. W. Gregory, trustee (in another deed of trust). The cause was tried in the Circuit Court of Johnson County.

The petition is lengthy but we shall endeavor to give the substance of the pertinent allegations. We state the facts as they are alleged in the petition. A. N. Welborn, a resident of Johnson County, died, intestate, "leaving no widow," November 26, 1933. A daughter, Gladys Maupin "was lawfully appointed administratrix," of Welborn's estate, by the Probate Court of Johnson County and was at the time this suit was filed "the lawfully appointed administratrix of said estate." At all times mentioned plaintiff was a resident of Johnson County "and engaged with her husband in agricultural pursuits." In February, 1927, Welborn "requested and contracted with plaintiff to furnish him room and board and do his washing and to render such other services as necessary and required, from time to time by him for his comfort and convenience as such boarder . . . and agreed to pay the plaintiff reasonable compensation" therefor, to which "plaintiff consented and agreed," and "pursuant to said arrangement" Welborn "resided with the plaintiff and occupied a room and was furnished his board, washing, laundry and such other services necessary to make him comfortable from, and after said time, until the 10th day of January, 1933." From the "latter part of December, 1931 . . . until January 10, 1933, Welborn was ill" and in addition to the aforesaid services rendered by plaintiff she "cared for and nursed Welborn in his sickness." It is alleged that the reasonable value of all the services so rendered Welborn is $ 1450. On April 20, 1931, Welborn married and "brought his wife to plaintiff's home." The petition then alleges that Welborn became indebted to plaintiff in the additional sum of $ 100 "for board lodging," etc., for his wife from April 20, 1931, to June, 1931, and that Welborn became indebted to plaintiff in the aggregate amount of $ 1550 which, less credits later set out, "is now a lawful and just demand against his estate." Plaintiff says Welborn's estate is entitled to credits "against her claim" aggregating $ 240, being "forty dollars for provisions furnished her by Welborn" and $ 200 "upon a promissory note which she executed to . . . Welborn," "leaving a balance due plaintiff from the said Welborn, and constituting a lawful demand against his estate," in the sum of $ 1310, "with interest thereon . . . from January 10, 1933 . . . the date . . . she made demand on the said Welborn for payment of her claim." It is then alleged that "the validity of her claim is undisputed by defendants, or any one else." As to the alleged fraudulent conveyances of land the petition alleges; that "at the time of the employment of the plaintiff . . . and during that time" Welborn "was possessed of very little money and means, save and except that he was the owner "of a tract of 180 acres of land in Johnson County; that "shortly before his death . . . the said Welborn . . . intending to avoid the payment of said indebtedness to the plaintiff, and in fraud of his creditors, especially plaintiff, on the 16th day of January, 1933," (Welborn died Nov. 26, 1933) "conspired and contrived with the defendant Ella M. Jordan" (his daughter) "to put all of his property and effects out of the reach of his creditors . . . and pursuant to, and in furtherance of said fraudulent scheme, he executed a deed conveying all of his real estate . . . to the said Ella M. Jordan . . . without any valuable consideration for said conveyance;" that said deed conveyed 180 acres of land, which is described, all in Johnson County, subject to two deeds of trust securing an aggregate sum of $ 1100; that the deed was recorded on January 17, 1933; that "said deed was fraudulent and void as to Welborn's creditors and especially this plaintiff, and was made for the sole purpose of avoiding the payment of his just debts and obligations;" that on November 20, 1935 (approximately two years after Welborn's death) defendants "Ella M. Jordan and her husband J. F. Jordan . . . still contriving and conspiring to carry out said fraudulent scheme with defendant Gladys J. Maupin (daugther of Welborn) and L. V. Maupin, her husband, . . . to put said property further beyond the reach of Welborn's creditors" conveyed forty acres of the land, without any consideration therefor, to three named persons, not made defendants herein, who, "immediately" and on the same date, conveyed the said forty acres of land, without any consideration therefor, to the defendants Gladys J. Maupin and L. V. Maupin; that both deeds were recorded, though the date thereof is not stated; that on the same date, November 20, 1935, the Jordans "in furtherance of said fraudulent scheme" and "still contriving and conniving with" the Maupins conveyed another forty acres of the land to the Maupins, without any consideration therefor; that thereafter, the date is not stated, the Jordans "still contriving and scheming to defraud the creditors of the said Welborn" executed and delivered a deed of trust against the 100 acres of land, title to which remained in Ella M. Jordan, to G. W. Gregory, trustee for C. A. Gregory, "which said deed of trust pretended . . . to secure a note for the sum of $ 1200," but "that the said Gregorys, and each of them well knew at the time that the said Ella M. Jordan's title to said land was fraudulent and void," etc.; and that the Maupins executed and delivered a deed of trust against the 80 acres of the land, title to which was in their names, to C. A. Gregory, trustee for G. W. Gregory and Nancy E. Gregory, "purporting" to secure notes aggregating $ 3200 but that all the Gregorys, parties thereto, "at the time" knew that "the title of the Maupins . . . was fraudulent." Nancy E. Gregory is not made a party defendant nor is either G. W. Gregory or C. A. Gregory ...