Alnutt v. Leper

• Decision Date: 31 August 1871
• Parties: JAMES W. ALNUTT, Plaintiff in Error, v. JAMES LEPER et al., Defendants in Error.
• Court: Missouri Supreme Court

48 Mo. 319

JAMES W. ALNUTT, Plaintiff in Error,

v.JAMES LEPER et al., Defendants in Error.

Supreme Court of Missouri.

August Term, 1871.

Error to Grundy Circuit Court.

Samuel and Broaddus, for plaintiff in error.

I. The petition is sufficient. The facts and allegations necessary to constitute a cause of action are sufficiently alleged.

II. When a fraudulent conveyance is made, as in the present case by Craig, the creditors or any one of them may file a bill in equity to have the same set aside. (George v. Williamson, 26 Mo. 190; Brown's Adm'r v. Quinley, 18 Mo. 375.)

III. Norman J. Bliss, as administrator of the estate of Andrew Craig, deceased, is a necessary party to the suit. (1 Am. Lead. Cas. 74, and authorities cited.)

IV. Plaintiff is not attempting to enforce the lien of a judgment, but is merely attempting to subject the property to the payment of his debt. The death of Craig after the expiration of plaintiff's judgment lien does not preclude him from asserting his equitable right as a creditor to set aside the conveyances made and accepted for the purpose of defrauding Craig's creditors, and from proceeding against the fraudulent grantee, Leper, and to subject the property found in his possession to the payment of the debts of said Craig. The death of Craig did not make the fraudulent conveyances valid as against his creditors.

McFerran & Collier, for defendants in error.

I. Norman J. Bliss, as administrator of Andrew Craig, has no interest in the controversy, and is not a necessary party to a complete determination of the action.

II. The petition does not state facts sufficient to constitute a cause of action, in this: the petition does not show or allege any title, claim or lien in the plaintiff to the land to be affected by the decree sought, nor any right whatever to the land or any part thereof, or to set aside the conveyances of the same. (Hiney v. Thomas, 36 Mo. 377; Martin v. Michael, 23 Mo. 50; Brinkerhoof v. Brown, 4 Johns. Ch. 671; Melville v. Brown. 1 Har. Johns. 367.)

III. The petition does not even show that execution was ever issued. (2 Sto. Eq. Jur. 438 and note.)

BLISS, Judge, delivered the opinion of the court.

The petition charges that the plaintiff, in 1860, recovered a judgment against James Craig, deceased, for some $20,000; that without consideration, and to defraud plaintiff, the said Craig in his lifetime conveyed his real estate to certain of the defendants; that in 1867 he died, and one of the defendants, Norman J. Bliss, is his administrator; and prays that the property may be sold and the proceeds applied to the payment of the plaintiff's said judgment. The defendants jointly demur to the petition and specify the grounds of demurrer, to-wit: 1st, because the petition does not allege facts showing a lien or title in the plaintiff to the real estate covered by the conveyance; 2d, Craig having died before execution and after the expiration of the judgment lien, the plaintiff has no equity; 3d, the administrator of Craig is not a proper party. The demurrer was sustained by the Circuit Court, and judgment was entered upon it. I have given the grounds of the demurrer because, although the petition seems to be defective, it is not so, for the reasons named, and the court committed error in sustaining the demurrer. The statute is imperative that “the demurrer shall distinctly specify the grounds of objection to the pleadings” (Wagn. Stat. 1015...