Fulkerson v. Sappington

Decision Date17 March 1891
Citation15 S.W. 941,104 Mo. 472
CourtMissouri Supreme Court
PartiesFULKERSON et al. v. SAPPINGTON et al.<SMALL><SUP>1</SUP></SMALL>

In a suit to set aside a conveyance as fraudulent, it appeared that the principal defendant, who was county treasurer, purchased the land for $2,100, and paid for it with public funds, but took the title in the name of a third person; that after two years, at his request, the property was conveyed to his banker, who also held it in secret trust, having given nothing for it; that defendant afterwards resigned his position as county treasurer, being a defaulter to the extent of $6,000, and hopelessly insolvent; that among his debts was a note for $3,000 to his bankers; that his surety thereon was desirous of being released; that defendant persuaded his brother to become his surety, and, to indemnify him, procured an agreement from his banker to convey the land to him upon the payment of the note, and reciting that the price of the same at $1,500 was included therein; and that the conveyance was so made to the brother; that defendant executed a mortgage on his homestead as further indemnity; that his brother was sheriff of the county, and admitted that he had heard rumors of defendant's condition, but made no inquiry; that he examined the title, and thought he would be safe. The plaintiffs claim as heirs at law of one of defendant's sureties on his bond as treasurer, who purchased the land at execution sale, under a judgment in favor of the county against defendant and his bondsmen. Held, that the transfer to defendant's brother should be set aside as fraudulent.

Appeal from circuit court, Saline county; RICHARD FIELD, Judge.

This is a suit in equity by appellants against respondents, to obtain a decree of title to a tract of about 10 acres of land near Marshall, in Saline county, Mo.; the plaintiffs as purchasers of the title of Barnabas Sappington under execution against defendant Frank Sappington, who claims by virtue of certain conveyances charged by plaintiffs to be fraudulent as against them. From 1868 to 1874 Barnabas Sappington was treasurer of Saline county, Mo. Among others, Frederick Fulkerson was one of his bondsmen. The appellants are the heirs at law of Frederick Fulkerson. Frank Sappington is a brother of Barnabas Sappington, and was sheriff of Saline county in 1873 and 1874. In 1871, Barnabas Sappington purchased of John W. Bryant the 10-acre tract of land in controversy in this case, and another tract of 9½ acres adjoining it. He paid for the lands by check for $2,100 on Cordell & Montague, bankers in Marshall, with whom he kept his account as county treasurer. The evidence clearly shows he had no money in said bank at the time other than county funds. He caused the title to the land in suit to be conveyed by Bryant to one James H. Eakin in September, 1871. Eakin held the title in secret trust for Barnabas until February, 1873, when, at the request of Barnabas, he conveyed it to E. D. Montague, one of the firm of Cordell & Montague. In the fall of 1873 it was discovered that Barnabas Sappington was a defaulter in his office of treasurer. It seems to have become generally known. As he says, he resigned because he was behind in his accounts, and could not make up the amount of his shortage, and the people wanted a new treasurer. He tendered his resignation on 23d day of December, 1873. David Landen was appointed his successor, and the settlement of Barnabas set for hearing in January, 1874. On this final settlement it appeared he owed the county nearly $6,000. On December 10, 1873, Montague and wife executed to Frank Sappington the following contract for a deed to the lands in suit: "Know all men by these presents, that I, E. D. Montague, of the county of Saline, state of Missouri, have this day sold to F. M. Sappington the following described real estate, situate in Saline county, Missouri, to-wit: The east half of the south-west quarter of the southeast quarter of section eleven, township fifty, of range twenty-one; to which said land I agree to bind myself to make a deed, with covenants of special warranty, conveying said land to F. M. Sappington, or to whom he may direct, on the following condition, to-wit: That B. Sappington and F. M. Sappington have this day executed to Cordell and Montague their joint note for the sum of three thousand dollars, dated Dec. 10th, 1873, due Jan. 1st, 1876, bearing ten per cent. per annum interest from date, which said note embraces the consideration for said land, to-wit, fifteen hundred dollars. Now, if said note shall be paid when due, then this obligation to be in full force; otherwise to be void. Witness my hand and seal this 10th day of December, 1873. E. D. MONTAGUE. [Seal.] MARY M. MONTAGUE. [Seal.]" — which was acknowledged on the 12th, and recorded on the 13th, of December, 1873. Afterwards, on 6th of March. 1879, Montague and wife made a "special warranty" deed to Frank Sappington to the said lands, and it was recorded in recorder's office in Saline county, March 7, 1879. It is this contract and deed that plaintiffs charge are fraudulent, and seek to have them declared void. The petition in this case was filed March 17, 1887, and charges that Barnabas was county treasurer; that Frederick Fulkerson and others were his bondsmen; that he defaulted and became and was wholly insolvent; that he was indebted to the county in the sum of $6,000 in the fall of 1873; that, being so indebted, said Barnabas and Frank Sappington and E. D. Montague entered into a fraudulent combination and arrangement, whereby the land in suit was to be conveyed to Frank Sappington by Montague upon the payment of a certain $3,000 note that day executed to Cordell & Montague by Barney and Frank Sappington. The petition also sets forth that at the same time Barney secured Frank against loss as security on said note by a deed of trust on his other place of 9½ acres. The petition charges this contract and subsequent deed to have been voluntary and fraudulent, made to defeat the creditors of Barney, especially Saline county; charges that judgments were obtained on his defaults to the county; the sale of this land under said judgments, and the purchase by Frederick M. Fulkerson, the ancestor of plaintiffs; that at the time of the execution of the contract the lands were vacant and unimproved. The prayer is for cancellation of deed of Frank Sappington, and decree of title in plaintiffs. The answer admits the relations of the parties; that Barney was treasurer, and that Frederick Fulkerson was surety on his bond; that he was indebted as charged in petition; denied all fraud; set up the purchase of Bryant; the execution of the deed to Eakin; the payment of the money by Barney; and then states that Barney sold, and at his request Eakin conveyed, the land to Montague; that afterwards Barnabas Sappington, in November, 1873, became indebted to Cordell & Montague in the sum of $3,000, with Isaac Elzea as his surety; that Elzea insisted on being released, and the said Montague was not able to pay the same, and for the purpose of securing Cordell & Montague, and releasing Elzea, Barnabas executed a new note for $3,000, with Frank as surety; and that at this time Frank bought the land in question from Montague, and it was agreed between Frank and Barney and Montague that Frank should pay $1,500 on the note, and that Barney should release Montague from the payment to him of that amount for the land, and that upon the payment of the $3,000 in full Montague should make Frank a deed for the land; that Frank had paid the note, and Montague on March 6, 1879, made him the deed; and pleaded the statute of limitations. Plaintiffs to the statute of limitations replied an estoppel.

Evidence: Barnabas Sappington, one of the defendants, testified that he bought the land in question from John W. Bryant, in September, 1871, together with the N. W. of S. W. of S. E. of the same section, through Eakin as his agent; and it was conveyed by Bryant to Eakin, and the title remained so in Eakin until February 12, 1873, in trust for him, Barney Sappington, without any evidence, from Eakin to said Sappington, of the payment of the purchase money by said Sappington, or of the trust in Eakin; that the land was paid for by the witness Barney Sappington at that time with money which belonged to Saline county, and was in his custody as treasurer of said county, by means of a check for $2,100 drawn by him, about the 30th of September, 1871, on the banking house of Cordell & Montague, at Marshall, Mo., where he had a large amount of county money deposited to his individual credit, which check was paid by the bank, on the 10th of October, 1871, out of the county money so to his (Barney Sappington's) credit, and charged to his account; that he had no other money or credit in the bank at the time, and that the money so paid for the land has never been paid back or made good to the county by him, but was afterwards paid by the sureties on his official bonds as treasurer on judgments recovered against them at the suit of the county; that he bought the land from Bryant, through Eakin, and took the deed in Eakin's name, because he thought he could buy it cheaper in that way; that Eakin so held the title from September 30, 1871, till February 12, 1873, when he, at the request of the witness, conveyed it to Montague; that, prior to becoming treasurer, he was engaged in mercantile business, in Marshall, in partnership with his brother Frank M. Sappington; that just before he became treasurer they closed out their business, and exchanged their stock of goods for a tract of land on Blackwater; that his, Barney's, entire interest in the stock and business went into the land, in which he thereby acquired a one-third interest, which was afterwards sold under executions issued on the judgments recovered by Saline county against him and his sureties on his official bonds as...

To continue reading

Request your trial
8 cases
  • Bostwick v. Freeman
    • United States
    • Missouri Supreme Court
    • 26 d4 Fevereiro d4 1942
    ... ... relatives are signs from which fraud may be inferred ... Matz v. Miami, 108 S.W.2d 975; Bank v ... Blick, 115 S.W.2d 27; Fulkerson v. Sappington, ... 104 Mo. 472. (4) The plaintiff did not take the witness stand ... and was charged with the character, knowledge and intent of ... ...
  • State ex rel. Zeigenhein v. Tittman
    • United States
    • Missouri Supreme Court
    • 17 d2 Março d2 1891
  • Fulkerson v. Sappington
    • United States
    • Missouri Supreme Court
    • 17 d2 Março d2 1891
  • State ex rel. Tempel v. Garesche
    • United States
    • Missouri Court of Appeals
    • 5 d2 Fevereiro d2 1918
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT