Garesche v. MacDonald
| Decision Date | 02 February 1891 |
| Parties | Garesche, Appellant, v. MacDonald et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.
Affirmed.
J. M Holmes for appellant.
(1) Upon the facts proved the appellant was entitled to a decree. It was sufficient to show that the defendant Furlong sold the property in question with the intention of defrauding plaintiff thereby, and that such intention was known to defendant MacDonald at the time he purchased. The payment or non-payment of a consideration was immaterial. Dougherty v. Cooper, 77 Mo. 528; Shelley v. Boothe, 73 Mo. 74; Frederick v. Allgaier, 88 Mo. 598. (2) There was no such discrepancy between the case stated in the pleadings and the case made by the evidence, as would warrant a decree for defendant upon that ground. Reed v Bott, 100 Mo. 62. (3) The amendment required, if any, being merely formal can be made in this court. Crispen v. Hannovan, 86 Mo. 168.
Alex. J. P. Garesche also for appellant.
(1) MacDonald bought with full knowledge of the suit and order of alimony. (2) First. An order for alimony is a valid judgment, and may be enforced by execution. Second. Though it should not be taxed as costs, yet the error as to form is too immaterial to justify a reversal. Third. Plaintiff cannot by dismissal impair its effect. These propositions are sustained by Waters v. Waters, 49 Mo. 386, which has never been overruled. Freeman on Ex. [2 Ed.] p. 183, sec. 82. (3) Without other proof than that MacDonald knew of the order of alimony and which is admitted, his title must yield to that of plaintiff, regardless of whether or not it was his intention to defraud plaintiff and although he may have paid the full value of the property. O'Reilly v. Nicholson, 45 Mo. 160; Turner v. Babb, 60 Mo. 350; Savings Inst. v. Collonius, 63 Mo. 294; McIlwrath v. Hollander, 73 Mo. 105. This doctrine of lis pendens in respect to these cases involving alimony takes a very wide range. In these the deed was made before suit brought, but annulled. Livermore v. Boutelle, 11 Gray (Mass.) 219; Nix v. Nix, 10 Heiskell (Tenn.) 547; Bailey v. Bailey, 61 Me. 361; 2 Bish. on Mar. and Divorce [6 Ed.] 453; Wait's Fraud Con., sec. 110n, p. 177.
M. Kinealy and Jas. R. Kinealy for respondent.
(1) The case made in the petition was abandoned on the trial and hence the petition was properly dismissed. Reed v. Bott, 100 Mo. 62; Dixon v. Hill, 5 Mich. 409; Jordan v. Buschmeyer, 97 Mo. (2) The order of December 9, 1885, for attorney's fees was void; the court had no power to make it. Waters v. Waters, 49 Mo. 385. (3) The order of December 9, 1885, was interlocutory, and could not be enforced by execution issued on an order made after the dismissal of the suit. Wright v. Wright, 6 Texas, 31; Tiffin v. Tiffin, 2 Binn. 202. (4) The order of January 27, 1886, being, in effect, a judgment, can be read on the hearing of the cause in this court, to sustain the judgment of the court below. Day v. New Lots, 9 Cent. R. 442; Stilwell v. Carpenter, 62 N.Y. 639; Rockwell v. Merriam, 45 N.Y. 168; Bank v. Enerie, 2 Sand. (S. C.) 718; Jarvis v. Sewell, 40 Barb. 449; Catlin v. Grissler, 57 N.Y. 373; Burt v. Place, 4 Wend. 524; Richie v. Putnam, 13 Wend. 524; Dresser v. Brooks, 2 Barb. 429; Williams v. Wood, 14 Wend. 126; People v. N. Y., 7 How. Pr. 81. (5) The order of December 9, 1885, was superseded, canceled and abandoned by virtue of the order of the court of January 27, 1886, and thereafter no execution could have been issued on it. (6) The order of January 27, 1886, could not relate back to the date of the order of December 9, 1885, so as to affect the title acquired by MacDonald under Furlong's deed to him. McClannahan v. Smith, 76 Mo. 428. (7) The order of January 27, 1886, so far as it allowed alimony, was void. Waters v. Waters, 26 Mo.; Brown v. Worthington, 6 Am. Law Reg. (N. S.) 621. (8) An allowance of alimony does not constitute the wife a creditor within our statute concerning fraudulent conveyances. Dunnock v. Dunnock, 3 Md. Ch. 140-144; Chas v. Ingalls, 97 Mass. 530; Wait on Fraud. Convey., sec. 110, n. 1; Bailey v. Bailey, 61 Me. 364; Burrows v. Purple, 107 Mass. 435; Livermore v. Boutelle, 11 Gray, 217. (9) Furlong had a right to convey his homestead, and the conveyance was not fraudulent as to the creditors. Davis v. Land, 88 Mo. 436. (10) The evidence does not sustain the case attempted to be made on the trial. Brenecke v. Miller, 44 Mo. 112; Dougherty v. Cooper, 77 Mo. 528; Violett v. Violett, 2 Dana, 323; Ratcliffe v. Trimble, 12 B. Mon. 32.
OPINION
This is an action to set aside a deed executed by defendant, John Furlong, on the ninth day of January, 1886, conveying to his codefendant MacDonald a lot or parcel of ground in the city of St. Louis described in the petition for the consideration of $ 2,000.
In the spring of 1885, the said John Furlong instituted in the St. Louis circuit court a suit for divorce against his wife, Ellen Furlong. The cause was heard on the thirteenth of November, 1885, and taken under advisement. On the ninth of December, 1885, the following order was made and entered of record in the case: "It is ordered that the defendant be allowed the sum of $ 150 as counsel fees to be taxed as costs." And immediately thereafter the court being fully advised in the premises ordered and adjudged that plaintiff's bill be dismissed at his costs; thereupon a motion for new trial was filed. On the ninth of January, 1886, Mrs. Furlong assigned said allowance to her attorney in the case, E. A. B. Garesche, the plaintiff herein.
On the twenty-seventh of January, 1886, the order of December 9, 1885, was modified by the court so as to read: "That the defendant herein be allowed the sum of $ 150, as and for alimony pending the suit, and it is considered by the court that the plaintiff pay said defendant within ten days said sum of $ 150, and that in default of such payment execution issue therefor."
On the twenty-eighth of January said allowance was registered in the abstract book as a judgment of said circuit court of date January 27, 1886. On the tenth of February, 1886, on motion of defendant and affidavits showing that the allowance had not been paid, execution was ordered. Execution issued on the twelfth of February, 1886, was levied upon the lot described in the petition and the same was thereafter sold and conveyed by sheriff's deed to the plaintiff for $ 125. On the twenty-fourth of February, 1886, the motion for a new trial was overruled. On the twentieth of March, 1886, the plaintiff having received his sheriff's deed for said lot instituted this suit.
The charge in the petition upon which the court is asked to set aside the deed of January 9 to MacDonald is as follows: "That at the date of said deed the realty it was intended to convey was the only property subject to execution owned or held by said John Furlong; that the consideration of said deed was purely fictitious, no part thereof was paid to said John Furlong or intended to be paid and no part thereof has ever been received by said John Furlong or in his behalf; and the only object of the parties to said deed (said John Furlong and Robert S. MacDonald) was if possible by said instrument to circumvent and defeat the collection of said judgment against said John Furlong in favor of said Ellen Furlong; and plaintiff avers the fact to be that the said conveyance was to and for the use of the said Furlong, and was made by him and accepted by the said MacDonald with the intention of hindering, delaying and defrauding plaintiff in the collection of said judgment; that said deed casts a cloud upon the title of plaintiff, said Edmond A. B. Garesche, of, in and to the realty hereinbefore particularly mentioned and described, in this, that the said clerk of the said circuit court did not until after the execution of the said deed of Furlong to MacDonald in the 'abstract of judgment' register the said judgment so rendered in favor of said Ellen against John Furlong, so that ostensibly the said deed of Furlong to MacDonald takes precedence of the lien of said judgment, so rendered in favor of said Ellen against John Furlong, though the plaintiff charges the fact to be, and is prepared to show, that said MacDonald at and for some time prior to the execution of the deed to him, said MacDonald, by said John Furlong, he, said MacDonald, was in said divorce suit of John Furlong acting for and in behalf of said John Furlong as his, John Furlong's, lawyer, and that he, said MacDonald, well knew of the existence of said judgment in favor of said Ellen Furlong against said John Furlong."
The defendants answering separately denied the allegations of the petition, averred the bona fides of the conveyance to MacDonald for a valuable consideration, and averred that at the time of the said conveyance Furlong was the head of a family; that the lot conveyed was his homestead and exempt from sale under execution. The court found the issues for the defendants, dismissed the bill and the plaintiff appeals.
The evidence shows conclusively that the defendant upon the execution of the deed to him paid Furlong $ 2,000, the consideration therein mentioned; that that was a full, fair value for the property and that there was no agreement or understanding between the parties secret or otherwise by which Furlong was to retain any interest whatsoever in the property. The trial court so found, and upon that finding dismissed the bill. The plaintiff conceding that this finding is warranted by the evidence, contends that, although the defendant MacDonald purchased the property absolutely for his own use and paid full consideration therefor,...
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