Ames v. Gilmore

Decision Date31 March 1875
Citation59 Mo. 537
PartiesBENJAMIN AMES, Respondent, v. HUGH GILMORE, et al., Appellants.
CourtMissouri Supreme Court

Error to St. Louis Circuit Court.

J. W. Noble, and Shearman, for Appellant, contended--among other points--that the court erred in its decree vesting the title of the land in plaintiff. Henderson vs. Dickey, (50 Mo., 257), did not overrule the principle adopted in Peyton vs. Rose, (41 Mo., 262), that the court cannot, in the suit to set aside a deed, go further and clothe plaintiff with the title. And Henderson vs. Dickey, unquestionably denies the chancellor such power unless the petition contain two counts calling separately for the two measures of relief. Again, that cause was based on a particular statute authorizing a writ of possession whenever a judgment is given for the conveyance of real property, which is not the case here.

L. N. Shreve and G. W. Mitchell, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought to set aside certain deeds, in the petition named, on the ground that they had been executed for the fraudulent purpose of hindering and delaying the plaintiff in the collection of a debt due him from defendant Gilmore.

The substantial facts set out in the petition were: that the defendant Gilmore, in the month of December, 1869, was indebted to the plaintiff in the sum of $8,000; that suit was then pending in the St. Louis Circuit Court between Gilmore and the plaintiff for the adjustment of said indebtedness; that on the ninth day of June, 1871, plaintiff recovered against said Gilmore, in said action, a judgment for the sum of $1,382.20, together with costs; that on the third day of January, 1870, said Gilmore conveyed a lot of ground in block 605, on Seventh street, in the city of St. Louis (which is described in the petition), with the improvements thereon, to Luther Babcock as trustee for Daniel G. Taylor, to secure the payment of $1,500 claimed to have been loaned by said Taylor to Gilmore, and which was payable with interest three years after date; that said conveyance was made by said Gilmore with the fraudulent intent of hindering and delaying plaintiff in the collection of his said debt; that the said Hugh Gilmore, with the same fraudulent intent, afterwards conveyed his interest in said before described real estate, together with four arpents of land situated on the Natural Bridge road, near the city of St. Louis (which is also described in the petition), and all of his property, to defendant, William Dawson, for the pretended sum of $2,000 said Dawson also assuming the payment of said sum of $1,500 to said Taylor; that in July, 1871, an execution was issued on the judgment so recovered against said Gilmore by plaintiff, as before stated, and that the said lands were levied on and sold under said execution in due course of law as the property of said Gilmore, and at the sale the plaintiff became the purchaser and received a sheriff's deed therefor; that at the time when the property was conveyed by Gilmore to Dawson, it was worth at least $12,000, which was well known to defendant Dawson; and that he well knew of the indebtedness of Gilmore to plaintiff, and combined with said Gilmore to cheat and defraud plaintiff, and hinde and delay him in the collection of his said debt; that said purchase of Dawson was fraudulent and without any consideration; that Gilmore was at the time wholly insolvent, and unable to pay his debts, unless said property so conveyed could be used for said purpose.

It is prayed by the petition that the conveyances so made between Gilmore and Dawson be declared void and of no effect and that the court by proper order vest the title to the real estate in plaintiff, and that the rights of the parties to said deed of trust be determined, and for further relief, etc.

The defendants answered separately, denying all fraud on the parts of each, or any knowledge of fraudulent intent in others, and Dawson claimed to have purchased in good faith and without fraud, etc.

The issues were tried by the court and a judgment rendered in favor of the plaintiff, setting aside or vacating the deed from Gilmore to Dawson and vesting the land in plaintiff, and rendering judgment against Gilmore and Dawson for costs.

No disposition of the case, so far as Taylor and Babcock are concerned, is made in the judgment or decree, but so far as appears by the record the case is still pending against them.

The defendants, Dawson and Gilmore, filed a motion for a rehearing, setting forth all of the usual grounds therefor. This motion being overruled, the defendants excepted and appealed to the general term of said court, where the judgment rendered at special term was in all things affirmed, and the said defendants appealed to this court.

It appears from the record in this case that for some years previous to the 4th day of December, 1869, the plaintiff and defendant Gilmore were partners in the milling business; that at the time last aforesaid, Gilmore commenced a suit against plaintiff, the object of which was to dissolve and settle up said partnership, Gilmore charging in the petition that upon a settlement of the partnership the plaintiff would be found to be largely indebted to him, etc. The plaintiff, who was defendant in that suit, filed an answer in the nature of a cross-bill, in which he claimed that Gilmore was largely indebted to him on the partnership account, and asked judgment upon a final hearing for said indebtedness. This action was pending in the St. Louis Circuit Court at the time that defendant Gilmore made the conveyances complained of in the petition. On the 9th day of June, 1871, a judgment was rendered in said action in favor of plaintiff and against said defendant Gilmore for the sum of $1,382.20. It was upon this judgment that the execution issued, under which plaintiff purchased the land or lots in controversy.

There is no question raised in this case as to the regularity of the execution and sale by the Sheriff, or as to the sufficiency of the Sheriff's deed, made to plaintiff to convey the title to the land, provided Gilmore had any interest in the land at the time to be conveyed. The grounds which have been urged and insisted on in this court, upon which a reversal of the judgment is claimed, are:

1. That the court erred in rendering a decree vesting the title to the premisses in controversy in plaintiff, even if the deed from Gilmore to Dawson should be set aside.

2. That it was error in the Circuit Court to render a final decree in the case as between the plaintiff and defendants Gilmore and Dawson, without disposing of the case as to the other defendants.

3. That the evidence fails to support the facts as charged in the petition and is insufficient to authorize the decree rendered by the court.

The first ground of objection raised by the defendant, in reference to the form and extent of the decree, is not well taken. Courts of chancery may in such cases not only set aside or cancel a fraudulent deed, and thereby divest the title of a fraudulent grantee, but the decree may proceed to invest the title thus divested in the plaintiff. In most cases such a decree would be wholly unnecessary, for the reason that the cancelling of the deed made to the fraudulent grantee would of itself have the effect to vest the title in the plaintiff, the only obstacle in the way of his legal title having been removed. But in all chancery cases the court may give any relief which is consistent with the pleadings. (Henderson vs. Dickey, et al., 50 Mo., 161.) And although the language of the opinion in the case of Peyton vs. Rose (41 Mo., 257), may seem to be inconsistent with the doctrine above stated, yet there is nothing in that opinion inconsistent with the decree in the present case, and therefore it is not necessary to further discuss the first point raised by defendant.

The second ground of objection raised by the defendant is of a technical character. There is no doubt but the court, either before rendering a final decree in the case or at the time of making the decree against the defendants Gilmore and Dawson, should have disposed of the case as to the defendants Babcock and Taylor; but Babcock and Taylor are not complaining, and we cannot see how the defendants here are injured. There seems to be no evidence against Babcock and Taylor, and we can only suppose that the case was abandoned by the plaintiff as to them, and that the failure to enter a dismissal as to them was a mere oversight, which can do the other defendants no injury.

It is also contended that Taylor and Babcock were improperly joined with the other defendants in the action, and that the petition therefore improperly joined two causes of action in the same petition against different parties, and was, therefore, multifarious. Without expressing any opinion on this subject, it is sufficient to say that the failure to demur to the petition, or to plead the matter specially, waives all objections to the petition except as to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action. Such an objection, if otherwise well taken, comes too late when raised for the first time in this court.

Under the third and last point raised in this court by the defendant, it is argued that the evidence does not sustain the plaintiff's petition, in this: that the petition charges that the deed was executed to Dawson by Gilmore without consideration, while the evidence shows that there was some consideration for the deed, and only tends to show that the consideration was inadequate; which it is contended cannot be done under the allegations of the petition. If this action had been brought to charge defendant Dawson as a trustee who was holding the lands in his name in trust for Gilmore, on the ground above stated, that the conveyance to Dawson from Gilmore was a voluntary deed executed without any consideration whatever,...

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