Bank of Pocahontas v. Miller

• Decision Date: 12 July 1918
• Docket Number: No. 15098.,15098.
• Parties: BANK OF POCAHONTAS v. MILLER et al.
• Court: Missouri Court of Appeals

204 S.W. 817

BANK OF POCAHONTAS v. MILLER et al.

No. 15098.

St. Louis Court of Appeals. Missouri.

Submitted on Briefs June 6, 1918.

Opinion Filed July 12, 1918.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be officially published."

Action by Bank of Pocahontas against Charles B. Miller and others. Judgment for defendants, and plaintiff appeals. Transferred to Supreme Court.

Albert M. Spradling, of Cape Girardeau, for appellant. Harry E. Alexander, of Cape Girardeau, for respondents.

REYNOLDS, P. J.

This action was instituted in the circuit court of Cape Girardeau county, for the purpose of adjudging fraudulent and void a certain conveyance of certain lands described, made by Charles B. Miller and Carrie D. Miller, his wife, to Helen Miller and Lucile Miller, their daughters, it being averred that the conveyance to the daughters was for the nominal consideration of $1.00, but in point of fact no consideration had passed, and that it wall made by Charles B. Miller with a view and with the intent to hinder, delay and defraud his creditors, among them this plaintiff, it being also averred that on June 1st, 1914, plaintiff recovered a judgment against the defendant Charles B. Miller in the Court of Common Pleas of Cape Girardeau County for the sum of $1194.64, on a note dated March 3rd, 1911, for the sum of $1000, with interest, which had been indorsed by the defendant Charles B. Miller; that execution was duly issued on the judgment, returnable to the November, 1914, term of that court, which was returned partly satisfied by the payment of $100, plaintiff paying the costs of the execution, amounting to $27.25, and that the remainder of the judgment and costs now remains due and unpaid.

It will be noted that there is no averment in this petition as to who purchased the land, which is averred to be the land described in this petition. Charging that the defendant Miller had no other property out of which the judgment and execution could be satisfied in whole or in part it is charged that unless the property fraudulently conveyed to the defendants Helen and Lucile Miller by Charles B. Miller and wife, can be reached and applied to the payment of the judgment, that judgment must remain wholly unpaid. Averring that it has no adequate remedy at law, plaintiff prays for a decree that the conveyance from Charles B. Miller and wife to Helen and Lucile Miller be adjudged fraudulent and void as against plaintiff; that the same be set aside and for naught held; that the property therein mentioned be ordered to be sold for the satisfaction of the...