Snell v. Harrison

• Decision Date: 23 March 1891
• Court: Missouri Supreme Court
• Parties: SNELL v. HARRISON et ux.<SMALL><SUP>1</SUP></SMALL>

16 S.W. 152

104 Mo. 158

SNELL v. HARRISON et ux.¹

Supreme Court of Missouri, Division No. 1.

March 23, 1891.

FRAUDULENT CONVEYANCES — EVIDENCE — PRACTICE.

1. Where, in an action to set aside a mortgage made by husband and wife, and a foreclosure deed in pursuance thereof to the wife, it appears that both were familiar with fraudulent conveyances for the purpose of hindering creditors; that several conveyances of the same land had been previously set aside as void on that ground; that the mortgage in question was executed when the husband was in embarrassed circumstances, and purported to be given to secure a note for $400, due 12 months after date, with 10 per cent. interest, and payable to the mortgagee as guardian of certain minor heirs; that by the power of sale therein the mortgagee was authorized to sell the premises," or so much thereof as will be necessary to satisfy the amount then due, with the costs and expenses allowed by law," without any provision for notice of sale; that this power was not executed for seven and a half years, when the land was sold to the wife for $745, being about the amount of the principal and simple interest, although the money was a trust fund; that the mortgagee accepted payment from the wife by her note, unsecured; that, though the note was long past due, there was no evidence that it had ever been paid; that the deed to the wife, though executed on January 14th, was not acknowledged and recorded until August 18th of the same year, — such mortgage will be held fraudulent and void as against a judgment creditor.

2. Though a tenant in common cannot buy an outstanding, paramount title so as to oust his cotenant, yet there is no reason why he may not buy in the independent interest of another tenant in common similarly situated.

3. Though a plaintiff may take a nonsuit as to a portion of his claim, a defendant who has set up affirmative matter in his answer cannot be allowed to do so and thereby keep back a portion of the matter in litigation from adjudication, and it is error to permit him to strike from his answer a part of his claim.

4. Under Rev. St. Mo. 1879, § 3635, providing for the saving of exceptions, the person composing the court must, if the bill presented be true, sign the same; but he is not required to seal it, and the want of a seal will not prevent the consideration of the points made.

Error to circuit court, Henry county; JAMES B. GAULT, Judge.

On the 22d day of May, 1885, plaintiff brought ejectment for the E. ½ of the S. W. ¼ and the W. ½ of the S. E. ¼ of section 13, township 45, range 24, Johnson county, Mo. This cause in another form, and with an additional plaintiff and with additional defendants, was before this court on a former occasion. 83 Mo. 651. The decree entered therein, setting aside the title of the defendants to the land above described on account of fraud upon the creditors of G. W. Harrison, and vesting the same in the then plaintiffs, Snell and Glass, bears date February 24, 1880; and the proceedings which resulted in that decree, afterwards affirmed in this court, were instituted the 23d day of May, 1878. On the 21st day of October, 1885, defendant G. W. Harrison filed an amended answer, in which he admits that on the 1st of June, 1880, plaintiff was entitled to the possession of the undivided seven-tenths of 26 2/3 acres of the premises sued for, being the south thirds of the N. E. ¼ of the S. W. ¼ and the N. E. ¼ of the S. E. ¼ of the said section 13. Defendant states that he has not been in possession of the above-described portions of said premises since April 1, 1885. Defendant also alleges that on the 4th day of March, 1881, plaintiff obtained a judgment against defendant for the possession of said portion of said premises, and damages and rent and profits, which judgment remains in full force. Defendant admits that he is in possession of the remainder of the premises in controversy. Defendant says that as to the N. E. ¼ of the S. W. ¼ and the N. W. ¼ of the S.E. ¼ of said section 13, one George W. Glass died intestate, seised and possessed in fee-simple of said premises. That he left surviving him his widow, Rebecca Glass, and Lucinda Glass and David A. Glass, his only children. That the estate of said George W. Glass was administered in Johnson county, Mo., and that said widow filed in probate court of Johnson county her election in writing to take as a child in lieu of dower, whereby she became entitled to one-third interest in said premises. That Rebecca Glass, Lucinda Glass, and David A. Glass afterwards, for the purpose of making partition of said premises, mutually agreed, in consideration of the release by the said Rebecca of all claims in and to the north two-thirds of said premises, she should take the south one-third of said tract, and Lucinda and David should take the north two-thirds of said premises. That afterwards Rebecca Glass sold to defendant George W. Harrison the said south one-third of the said tract, and that he immediately entered into the exclusive possession of said south third of said tract, and continued to occupy the same with the knowledge and consent of the said Lucinda and David A. Glass. That afterwards the said Lucinda married one Joseph R. Ray. That afterwards, in course of the administration of the estate of George W. Glass, the said N. E. ¼ of the S. W. ¼, and the N. W. ¼ of the S. E. ¼ was ordered to be sold for the payment of debts. That at said sale, defendant George W. Harrison became the purchaser, the sale was approved, and a deed made by the administrator conveying said land to defendant George W. Harrison. That afterwards, in January, 1875, the said David A. Glass commenced a suit in the circuit court of Johnson county to set aside said administrator's deed, and to divest said Harrison of all title to said property which he acquired by virtue of said administrator's deed. That at the June term. 1876, a decree was entered setting aside said sale and deed as to the said David A. Glass, and divesting said Harrison of all title to said property as to the interest of the said Glass. That thereafter said Harrison did not assert or claim any title or interest in said lands by virtue of said administrator's deed. That on the 29th of January, 1879, the said Lucinda Ray and husband conveyed the undivided one-third interest in said tract to David A. Glass. That on the 19th of April, 1881, said David A. Glass, in consideration of $400 paid him by this defendant, sold and conveyed all his right, title, and interest in said tract to Brunetta Harrison, whereby she became the owner of the north two-thirds of said tract, and as such owner entitled to the possession thereof. That said Brunetta Harrison purchased and paid said Glass for said north two-thirds of said tracts, relying upon the actions and conduct of said George W. Harrison, and his disclaimer of any interest in said tracts under and by virtue of said administrator's deed.

This defendant further says that on the 15th day of February, 1878, the said David A. Glass and plaintiff, J. R. Snell, became the owner of all the title and estate of the said George W. Harrison in the said south third of said tracts by purchase at execution sale upon judgments against said George W. Harrison, that at said sale said Glass became the owner of the undivided three-tenths interest in said tracts. This defendant, as the husband of said Brunetta Harrison, holds and claims under her right and title. On the same day defendant George W. Harrison filed a motion asking that his wife, Brunetta Harrison, be made a party defendant. This motion was granted, and Brunetta Harrison filed her separate answer. She admits that on the 1st day of June, 1880, plaintiff was and still is entitled to the possession of an undivided seven-tenths of 26 2/3 acres, being the south thirds of the N. E. ¼ of the S. W. ¼ and the N. W. ¼ of the S. E. ¼ of section 13, township 45, range 24. She disclaims all interest in said seven-tenths. As to the N. E. ¼ of the S. W. ¼, and the N. W. ¼ of the S. E. ¼, she claims that she paid $400 to Glass for his interest in the land; otherwise she sets up the same facts set up by George W. Harrison in his answer. She concludes her answer by alleging that she is the owner of the whole of the N. E. ¼ of the S. W. ¼ and N. W. ¼ of the S. E. ¼, saving and excepting an undivided seven-tenths of the south 26 2/3 acres off the south side thereof, which belongs to plaintiff, except the inchoate right of dower therein of the defendant. She prays that upon a final hearing her rights, equities, and interests in said north-west, south-east, and north-east, south-west, be ascertained and declared, and that plaintiff be debarred and estopped from having or claiming any interest therein, and for all equitable and proper relief. Upon the application of defendants a change of venue was awarded to Henry county.

Plaintiff filed a reply, denying the matters alleged in the answers of defendants. The cause was tried September term, 1886, in the Henry county circuit court. The decree referred to, caption included, is the following: "John R. Snell and David A. Glass. vs. Brunetta Harrison & Geo. W. Harrison, her husband, Chas. A. Harrison, Mary A. Harrison, Harvey E. Harrison, Nellie M. Harrison, and Virgie Harrison, minor heirs of A. B. Harrison, deceased, defendants. Now, at this day come the parties aforesaid by their attorneys, and the motion of plaintiffs heretofore filed to set aside and disregard the finding of the jury on the issues submitted to them by the court, and to render a decree in pursuance of the prayer of said plaintiffs' petition in favor of plaintiffs, coming on to be heard, is taken up and submitted to the court, and the same, after being fully seen and heard, is by the court sustained, and the findings of the said jury set aside; and the court, having seen and heard all the matters in evidence submitted in the cause, doth find that on and...