Exch. Bank of Missouri v. Russell

• Decision Date: 31 August 1872
• Parties: EXCHANGE BANK OF MISSOURI, Appellant, v. WILLIAM H. RUSSELL, Respondent.
• Court: Missouri Supreme Court

50 Mo. 531

EXCHANGE BANK OF MISSOURI, Appellant,

v.WILLIAM H. RUSSELL, Respondent.

Supreme Court of Missouri.

August Term, 1872.

Appeal from Clay Circuit Court.

Hall & Oliver and A. & T. A. Green, for appellant.

Crisman & Merryman, for respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action to set aside a deed of trust made by the defendant Russell to Benjamin Holliday to secure a debt to the defendant James N. Simpson, upon the ground that the debt and trust were fraudulent as to creditors. The deed of trust covered large amounts of land in Lafayette and Johnson counties. The facts of the case, as they appear from the record, are about as follows: Jerome B. Simpson was the owner of 1237 shares of stock in the Central Overland California and Pike's Peak Express Company, and desired to dispose of his shares, as his health was bad and he wanted to go to Europe. The defendant William H. Russell was a member of a firm that held a large amount of shares of the stock of this company, and did not want the stock belonging to Jerome B. Simpson to go into the hands of a stranger, and in June or July, 1860, commenced negotiating with him for his stock. The stock was considered worth fifty cents on the dollar, and Jerome finally agreed to take this amount for it, but wanted the money down. The defendant Russell was ready to secure the amount, but had not the money to pay for it, so James N. Simpson, the brother of Jerome, agreed to advance the money for the stock, or rather purchase it of his brother, at fifty cents on the dollar, and let defendant Russell have it at the same price. This agreement was made in October or November, 1860, and finally reduced to writing on the 24th of December, 1860, when the defendant Russell executed to the defendant Simpson his bond of that date, amounting to sixty odd thousand dollars, for the stock referred to, and agreed to secure the same by a deed of trust to be executed by him on lands in the counties of Lafayette and Johnson, in the State of Missouri, as soon as he could procure the numbers and description of the lands, the parties at that time being in the city of New York. The defendant Russell was arrested in New York at the instance of the United States and taken to Washington City, and while there under arrest, after procuring the numbers of the lands, executed the deed of trust to secure the bond he had given to defendant Simpson. This trust deed covered only a portion of the lands belonging to the defendant Russell, and in a day or two after executing this deed he made other deeds and bills of sale of real and personal property, which the proof shows were made to defraud his creditors. But there was no evidence to connect the defendant Simpson with these frauds, nor was there any evidence that he knew or had any information of the intention of Russell to make such deeds and bills of sale. The defendant Simpson paid his brother for the stock in a debt due to him from his brother for some $25,000, and the balance in money. The stock of the express company soon after this transaction became worthless, and may have been so at the time, but this was not known to the parties. In drawing the deed of trust to secure the debt to Simpson the draftsman made a clerical error in describing the debt to be due to the trustee, Holliday, instead of to the beneficiary, Simpson, and in describing the bond secured as bearing even date with the deed of trust, whereas it actually bore date and had been duly executed and delivered on the 24th day of December, 1860, several days before the execution of the deed of trust. These mistakes were duly proven by the evidence, but had not been discovered till after the institution of this suit.

The plaintiff...