Boyer v. Tucker

• Decision Date: 31 October 1879
• Parties: BOYER v. TUCKER, et al., Appellants.
• Court: Missouri Supreme Court

70 Mo. 457

BOYER

v.TUCKER, et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

REVERSED.

W. P. Johnson, R. O. Boggess and C. C. Bassett for appellants.

E. J. Smith for respondent.

SHERWOOD, C. J.

Boyer instituted this proceeding to set aside, as a cloud upon his title, a deed obtained by Tucker as he result of a sale, under execution, of certain land, sold as the property of one Irvin Walley. The indebtedness in favor Riggs and Swift and against Walley, and upon which judgment was rendered and execution issued, existed on the 7th day of February, 1873, when the deed from Walley to his brother-in-law, Boyer, was made. On the 27th day of February, 1873, suit was brought by Bates county against Smith, collector of that county, and his sureties, Walley among the number, for the recovery of $45,000--alleged to have been collected by Smith and not accounted for. This case is reported, 65 Mo. 464. Tucker, in his answer, charged that, in order to defeat the collection of the debt of Riggs and Swift, and also any judgment which the county might recover, Walley and Boyer conspired together for the purpose mentioned, and the former made the latter the deed of February 7th, 1873.

These allegations of the answer were denied, and, upon final hearing, a judgment was rendered setting aside the deed of Tucker, and vesting whatever title he acquired, by reason of the sheriff's deed, in the plaintiff, Boyer.

We regard it as altogether immaterial whether Tucker was apprised of certain irregularities in the partition proceedings, and of the intention of the parties in making the five quit claim deeds, to correct whatever mistakes may have occurred in those proceedings. Nor is it at all important that Tucker purchased the land “on a speculation,” and for the small sum of $23. The effect of the sheriff's sale and deed were to pass to Tucker whatever right, legal or equitable, Walley had in the land. Tucker's rights in the premises were of just as high a nature as though he had been a creditor of Walley at the time of his purchase. Ryland v. Collison, 54 Mo. 513. If the transaction between Boyer and Walley was a fraudulent one, then a resulting trust immediately arose in favor of the creditors of the latter, which trust could as well be enforced in favor of Tucker, as of any creditor. The paramount question then, in this case, is, whether the fraudulent purpose charged in Tucker's answer, really existed. We have no doubt that it did. Either Boyer's arithmetic, or else his memory, must be greatly at fault, because, with all his efforts in that direction, he was not able to show himself the possessor of anything like the sum of money he says he paid Walley for the land.

He claims to have paid $4,000; $1,500 in cash, $1,100 in an account owing to him by Walley for cattle, $500 in a school debt, which he states he assumed, and to have given his two notes, one for $700, and the other for $200, which he says he afterwards paid. He swears positively to the payment of every dollar of the $1,500, and even pretends to give the denominations of some of the bills; but, as to these, he is not corroborated by Walley, who states positively there were no $100 bills, nor does he think there were any $50 bills. In reference to the amount of money Boyer had on hand at the time the deed of February 7th, 1873, was made, it is utterly irrelevant to inquire what amount of money he had in preceding years, since we have it from his own lips that, on the 1st day of August, 1872: “I do not know whether I had any money at that time or not; I think probably I had some. I suppose I had some money at that time. Perhaps $100, $200, or $300; cannot say how much.” His sworn assessment list delivered to the assessor, shows not a dollar was possessed by him on that day; nor does he give in the $1,100--which he claims Walley owed him at that date--for cattle sold him. He says he sold enough of cattle and grain to make up, with the $450 he claims to have obtained from his father, the $1,500 alleged to have been paid Walley. These are his figures of what he sold after August, 1872:

3 or 4 cows at $30 each in fall to butchers at La Cygne,

$120

1 horse to Grigg,

75

1 horse to Brown,

65

300 bushels of wheat to two or three different merchants at La Cygne, Kas., whose names he does not know,

300

200 bushels of rye to same parties,

100

Making

$660

Of this amount he says he paid for taxes $80 or $90; borrowed money, $50 to $75; say $80 plus $50,

130

Leaving

530

This, with the sum from his father,

450

Would make but

980

Leaving a deficit of ($1,500--980)

520

But he says he kept several hundred dollars in his house from January, 1871, till he bought Walley's land. If so, then his affidavit before the assessor was untrue, as well as the subsequent statement just quoted above, that he did not know whether he had any money on the first day of August, 1872, or not--and these discrepancies abound in his testimony. He says he borrowed the $500 of his father in November, or December, 1872, receiving a check for the amount; borrowed it to buy cattle with. Shortly after making this statement, he says: “After I got the check, I sold a horse to one Rankin for $80. This was in the spring of 1872.”

In another part of his testimony, we find him stating that notwithstanding the large amount of money he had on hand in 1873, just before he bought the land of Walley, that he was repeatedly dunned for, and compromised a little debt of $3 or $4; and when sued by Nichols for $8, begged and obtained two months additional time, for which extension he paid interest. Nor is he more fortunate in his testimony as to the payment of the note for $700 which fell due in...