Dozier v. Matson
| Decision Date | 05 March 1888 |
| Citation | 7 S.W. 268,94 Mo. 328 |
| Parties | Dozier, Administrator, Appellant, v. Matson et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hons. Shepard Barclay and Amos M. Thayer, Judges.
Affirmed.
George A. Castleman, Theodoric F. McDearmon and Henry D. Laughlin for appellant.
(1) The obligation of the bond of A. S. Matson, principal, and Dozier and Fulkerson, securities, constituted a debt from and after the execution of the bond, and plaintiff, whose intestate discharged the same, can enforce the same remedies, in virtue thereof, as the ward could. Note to Sexton v. Wheaton, 1 American Leading Cases [5 Ed.] p. 45, Hare and Wallace's notes. (2) The voluntary conveyance to Richard C. Matson, dated March 20, 1877, being executed and delivered after the insolvency of the grantor, is fraudulent and void as against the plaintiff, whose intestate was a prior creditor. Gamble v. Johnson, 9 Mo. 605; Woodson v. Poole, 19 Mo. 344; Potter v. McDonald, 31 Mo. 73; Patten v. Casey, 57 Mo. 119; Payne v Stanton, 59 Mo. 159; Mittelberg v. Harrison, 11 Mo.App. 136. (3) The alleged letter from A. S. Matson to his son, Richard C. Matson, of alleged date of December 21, 1871 and the subsequent possession of the land covered by the voluntary deed of March 20, 1877, created, as against a prior creditor of the donor, no eq uity in favor of the donee. Rucker v. Abell, 8 B. Monroe, 566; Goldsby v Johnson, 82 Mo. 602; Bump on Fraud. Con. [3 Ed.] 38, 39, 40. As the case is not between parties and privies, the rule laid down in Sutton v. Hayden, 62 Mo. 101, and prior cases, cannot, in any way, affect the question at bar. (4) If said letter could be held as tantamount to a deed, the position taken by the judges of the circuit court, still the failure to record or impart other notice of it until 1877, six years after its alleged date, the grantor in the meantime enjoying the credit secured and maintained by the reputed ownership, is, of itself, sufficient to vitiate the voluntary conveyance as against creditors not subsequent to such record or other established notice thereof. Walsh v. Chambers, 13 Mo.App. 309; Goldsby v. Johnson, 82 Mo. 602. (5) If said deed, dated March 20, 1877, had borne the date of the alleged letter, December 21, 1871, or even the date of deed to William H. Matson, December 31, 1869, still, being voluntary, it would be void as against plaintiff, whose intestate was a creditor prior to all of said dates. Payne v. Stanton, 59 Mo. 159; Boyle v. Boyle, 6 Mo.App. 594; Whitter v. Saunders, 1 Matthews (75 Va.) 568; Hanson v. Buckner's Ex'r, 4 Dana, 252; Cosby v. Ross' Adm'r, 3 J. J. Marshall, 290; Spirett v. Willows, 3 D. J. & S. 203; Kidney v. Coussmaker, 12 Ves. 155.
No brief for respondents.
The plaintiff seeks, by this proceeding in equity, to set aside as fraudulent, as against his creditors, a deed executed March 20, 1877, by Abraham S. Matson to his son, Richard S. Matson, the defendant. In 1868 the father moved to St. Louis. In 1869, after moving to that city, the father bought a piece of land for his only other son and child, W. H. Matson, and then so divided the home farm as to give each of his sons a portion of the homestead. Each son was placed in possession of the portion awarded him, and each of them have paid taxes and made valuable improvements on the share then assigned him; but a deed was only made at that time to W. H. Matson, though one was virtually promised the younger son, who was not of age at the time, the father saying, in the presence of his sons, to the surveyor who ran the division line between their respective farms: "I want to give them this farm; I want you to divide it between them." The reason given by the father at the time for not making a deed to his younger son, also, was that of his son's minority.
The property thus divided between his sons was worth something more than one-half of his whole estate, and was given to them as an advancement, the consideration being love and natural affection. At the time the father made this division of land between his sons, he was out of debt, and had, besides, in property and money, over twenty thousand dollars. Plaintiff's counsel expressly stated, at the hearing, that they made no claim that insolvency or fraudulent intent upon the part of the father existed in 1869, when the transaction before related occurred. Abraham S. Matson, the father, at that time, was also curator of four minor wards, whose money, several thousand dollars, was loaned out on good security. This money was collected by him in 1877, though what time in the year does not clearly appear. Some of this money he did not pay to one of his wards at the time she attained her majority, and thus the estate of plaintiff's intestate, in consequence thereof, had the sum of fifteen hundred dollars to pay; this was, it seems, in 1879 or 1880. In 1881, the plaintiff, as administrator of said surety, bondsman, brought suit against Abraham S. Matson for said amount thus paid, and in 1882 recovered judgment, upon which execution issued, and returned nulla bona. There were also exhibited in evidence by plaintiff, at the time this cause was heard, December, 1884, allowances made against the estate of Abraham S. Matson, aggregating the sum of $ 8,072.07. Also, various judgments rendered against him on notes, between September, 1877, and September, 1879, which judgments were afterwards allowed by the assignee.
In 1871, Matson wrote his son the following letter:
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