Boyd v. Jones

• Decision Date: 31 May 1875
• Citation: 60 Mo. 454
• Parties: SAMUEL S. BOYD, et al., Respondents, v. ALFRED JONES, et al., Appellants.
• Court: Missouri Supreme Court

60 Mo. 454

SAMUEL S. BOYD, et al., Respondents,

v.ALFRED JONES, et al., Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Ray Circuit Court.

This suit seems to have been commenced on the 25th day of October, 1867, and afterwards taken, by change of venue, to the Circuit Court of Ray county, and was there tried on an amended petition.

Hall & Oliver Vories and others, for Appellants.

I. Statements made by a party after assignment are not admissible to affect the title of the assignees. (Stewart vs. Thomas, 35 Mo., 202; Enders vs. Richards, 33 Mo., 598; Garland vs. Harrison, 17 Mo., 282.) The admissions of a grantor in a deed of trust, after its execution, are admissible in favor of the cestui qui trust, though not against him; and such admissions are not competent against the grantee or assignee. (McLaughlin vs. McLaughlin, 16 Mo., 242; Weinrich vs. Porter, 47 Mo., 293.)

II. The deed from McGirk to Thomas J. Jones, for the land in controversy, under the deed of trust, was improperly excluded as evidence offered by defendant Jones, to prove his title. It was prima facie good until attacked for fraud. But the court pronounced it fraudulent and void before the evidence was heard, or any offer to impeach it. This deed was dated September, 1869, and respondent's amended petition was not filed until 1871.

III. The evidence shows an agreement entered into on the day of the sale of the land by the sheriff, on the part of the respondents, to purchase the property by one for all, and to refrain from bidding, which operated to repress bidding, and was a fraud upon the debts. (Wooten vs. Hinckle, 20 Mo., 290; Neal vs. Stone, 20 Mo., 294; Hook vs. Turner, 22 Mo., 333; Stewart vs. Severance, 43 Mo., 322.)

H. Wallace & John E. Ryland, with Doniphan & Garner, for Respondents.

I. The declarations of Alfred Jones in regard to his son Thomas, whilst in California, after the date of the deed of trust, July 23, 1863, were competent against Thomas J. Jones, in connection with the other evidence in the case, showing a conspiracy, or common purpose entered into between Alfred Jones and Thos. J. Jones, or acquiesced in by Thos. J. Jones, to cover up the property of Alfred Jones and defraud his creditors. (Weinrich vs. Porter, 47 Mo., 293; Waterbury vs. Sturtevant, 18 Wend., 353; Cuyler vs. McCartney, 33 Barb., 165; Peck vs. Crouse, 46 Barb., 151; Gamble vs. Johnson, 9 Mo., 605.)

II. The court below properly excluded the pretended deed made by Isaac M. McGirk, on the 9th day of September, 1869, as trustee, to Thomas J. Jones, for the lands in controversy, on private sale, during the pendency of this suit and two years after the suit was commenced, not for cash, as authorized by the deed of trust, but for depreciated notes and choses in action, impeached as partly paid, and partly fraudulent and fictitious, in this suit, then pending, to which both McGirk and Thomas J. Jones were parties and had answered. (O'Reilly vs. Nickerson, 45 Mo., 160, 165, 166; 1 Sto. Eq. Jur., §§ 405, 407; Murry vs. Ballou 1 Johns. Chy., 566; Stone & Warren vs. Connelly, 1 Metc., [Ky.] 655; Frem. Judg., 228; Cord Leg. Eq. Rights Mar. Wom., Ch. XLIV, p. 597, § 1043.)

III. The pretence set up in the amended answer of defendants, Alfred Jones and Thomas J. Jones as to an alleged conspiracy and combination at the sheriff's sale, at which plaintiffs purchased the lands, in November, 1855, to depress the price of the lands and stifle bidding, is entirely unsupported by the evidence.

Plaintiff had a clear right to agree to bid on these lands, and make them bring the amount of their debts, or buy them. (Stewart vs. Severance, 43 Mo., 322.)

VORIES, Judge, delivered the opinion of the court.

By the petition in this case, it is stated that in the year 1862, Alfred Jones was indebted to each of the plaintiffs as well as others, in various sums of money, amounting in the aggregate to about two thousand dollars, for which said several sums he executed to the respective parties his several promissory notes; that in the latter part of the year 1863, suits were brought on said notes and judgments recovered thereon in the Lafayette Circuit Court, in the month of May, 1864; that after the rendition of said judgments, executions were duly issued thereon and delivered to the sheriff of Lafayette county, by virtue of which, said sheriff levied upon and seized, with other property, the following lands situate in said county, as the property of said Alfred Jones, to-wit: the west half of the south west quarter of section twenty-five, in township fifty-one of range twenty-seven, except twelve acres taken off the east side thereof; also twelve acres of the west half of the south west quarter of said section; also twenty-eight acres off the west side of the east half of the south west quarter of said section; that afterwards said sheriff in due form of law, on the 22nd day of November, 1865, sold said lands by virtue of said executions and levies, at which sale the plaintiffs became the purchasers of said lands, at and for the sum of $_____; that said sheriff thereupon executed and delivered to plaintiffs a deed to said land in due form of law.

The petition alleges that on the 23rd day of July, 1863, the said Alfred Jones, with a view to defraud, hinder and delay plaintiffs and other creditors of said Jones, by his deed of that date, commonly called a deed of trust, conveyed or professed to convey to the defendant, Isaac M. McGirk, as trustee, said tracts of land, together with a large quantity of personal property, for the pretended purpose of securing the payment of certain debts or pretended debts therein stated to be due from said Alfred Jones to various persons therein named, towit: to Isham and Elizabeth Martin the sum of $850, with interest; to Thomas J. Jones the sum of $5,350.00, by virtue of a note alleged to be dated the 5th day of October, 1857; to Washington Talbott the sum of $715; to one _____ Rucker the sum of $200; and to one _____ Russell the sum of $100; that said deed of trust was duly recorded and was executed, made and contrived by said Alfred Jones, to defraud, hinder and delay plaintiffs and other creditors of said Alfred Jones in the collection of their debts against said Alfred Jones, and to cover up his property from said creditors; that the intent to defraud was contrived by including, in said deed of trust, some real debts of said Jones, with other pretended and fictitious demands against him, and thus to incumber said land and property with some valid debts of an inconsiderable amount compared with the whole of the indebtedness named in the deed, intending at the time to pay the holders of said valid debts and get the same under the control of himself and family, and keep the same, together with said fictitious debts, as apparent liens to cover said property so as to hinder and delay his real creditors, and thereby secure the use and benefit of said property to himself without the payment of his just debts; that there was, and is in reality, no such debt due from said Alfred Jones to Thomas J. Jones, as that described in said deed of trust, as a debt of $5,350.00; but that the same was gotten up as a device to cover up said property as aforesaid; that there was no consideration for said note; that Thomas J. Jones is a young man, a son of said Alfred, and controlled by him, and was at the time wholly destitute of means; that the debts named in said deed of trust as being due to said Washington Talbott, and to Isham and Elizabeth Martin were long since paid with the means of said Alfred Jones, through one William H. Day and other persons, and that a pretended and fictitious assignment, of the claims and judgments which had been rendered thereon against said Alfred Jones, was, by the direction of said Alfred, made to said William H. Day, as trustee for the wife of said Alfred Jones, for the purpose of keeping said property covered by the apparent lien of said pretended debts after the same had been fully paid; that said Day had no interest in said debts, but was used by said Alfred Jones and wife for the purpose of covering up his property and withholding the same from his creditors; that the debts, named in said deed of trust, as being due from said Alfred Jones to said Rucker and Russell were either originally pretended and fictitious, or have long since been paid by said Alfred Jones, and have been fraudulently assigned to said Day for the same purpose for which the assignment of the other debts were made; that whatever just or real debts were named in, or secured by, said deed of trust have been fully paid as aforesaid; that the only debt named in said deed of trust which has not been paid, is the pretended debt of $5,350.00 to said Thomas J. Jones, which is pretended and fictitious.

It is further charged by the petition, that by the said deed of trust and other conveyances made by said Alfred Jones, about the same time, all the property of the said Alfred Jones subject to execution under the laws of this State, was conveyed away and covered up from plaintiffs and other creditors, leaving nothing in his name to satisfy the same or any part thereof; that the said Alfred Jones has always, since the making of said deed of trust, lived upon and enjoyed the use of said land; that by virtue of the purchase of said lands by plaintiffs, they became the owners of and entitled to said land, or to the equity of redemption in and to the same, so far as there were bona fide debts provided for in said deed of trust.

It is therefore prayed, that if there are any valid subsisting liens, upon said lands, by virtue of said deed of trust, plaintiffs may be permitted to redeem said land by the payment of such debts, and that said deed, as to other fictitious creditors named therein, may be declared to be fraudulent and void, and that the same be canceled so far as the rights of plaintiffs are concerned, etc.

The plaintiffs, before the filing of answers by def...