Bracken v. Milner

• Decision Date: 03 March 1903
• Parties: BRACKEN v. MILNER et al.
• Court: Missouri Court of Appeals

73 S.W. 225

99 Mo. App. 187

BRACKEN v. MILNER et al.

Court of Appeals at St. Louis, Missouri.

March 3, 1903.

FRAUDULENT CONVEYANCES — SUBSEQUENT CREDITORS — MARRIED WOMEN — PURCHASE OF HUSBAND'S PROPERTY AT EXECUTION SALE — MORTGAGES — JUDGMENTS — COLLATERAL ATTACK.

1. Where an insolvent, who has fraudulently contracted debts which he cannot pay, conveys property to his wife in fraud of existing creditors, such conveyance is also fraudulent as to subsequent creditors.

2. Where a wife with her own funds purchases her husband's land at execution sale, without collusion, she acquires a good title, in which her husband has no interest which can be subjected to the payment of his debts.

3. Where a mortgagor took up the mortgage with money furnished by a third party, and thereafter turned the mortgage over as collateral security for a loan, he had an equity in the mortgaged premises which might be subjected to the payment of his debts, subject to the prior lien of the holder of the mortgage.

4. A judgment cannot be collaterally attacked on the ground that it was rendered in vacation without consent of the parties.

5. The judgments of the federal courts are entitled to equal rank and presumption of regularity as judgments of the state circuit courts.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Suit by J. P. Bracken against Jas. R. Milner and others. From the judgment, both parties appeal. Affirmed.

H. C. Milner is the wife of James R. Milner. In 1884, James R. Milner, in consideration of love and affection, conveyed to his wife, lot No. 94 and south 24 feet of lot No. 98, Harwood, Lisenby & Boyd's addition, in the city of Springfield, Mo. In 1894 A. W. Howell obtained a judgment against James R. Milner for $461 in the Greene county circuit court. An execution was issued upon this judgment, and levied upon the above-described real estate, as the property of James Milner. After the levy the property was advertised for sale under the execution. Before the day of sale, Mrs. Milner bought the judgment with her own funds, and had it assigned to her. On the advice of her attorney, she permitted the property to be sold on the execution, and at the sale bid it in, and received a sheriff's deed therefor, which deed, together with the one made to her by her husband in 1894, she caused to be placed of record. The property was incumbered by a mortgage to secure a note of $1,500. It appears that Judge Rassieur, of St. Louis, furnished Milner with money to take this mortgage up, and that it was taken up by James R. Milner, but was not satisfied of record; that afterwards James R. Milner used it as collateral security to obtain a loan from the Holland Bank at Springfield; and that it was in pledge to said bank on the day of trial to secure money borrowed by James R. Milner. It appears that Judge Rassieur had had some dealings with Milner concerning some mining property at Aurora, Mo., out of which he had made considerable money, and that he had let Milner have money as a gratuity to help him out of his financial troubles. James Milner made his wife a gift of 19 shares of the stock of the Sphalerite Mining Company (a corporation), of the par value of $1,900. On October 5, 1900, plaintiff recovered in the United States Circuit Court for the Southern Division of the Western District of Missouri a judgment against James R. Milner for $1,800, which is in full force and effect. An execution was issued on this judgment, and returned by the marshal of the district nulla bona. After this return was made, plaintiff brought this suit in the Greene county circuit court against Milner and wife to subject the above-described real estate and shares of stock to the payment of the judgment. After hearing the evidence the court entered a decree subjecting the 19 shares of mining stock to the payment of plaintiff's judgment, and found that the $1,500 note and mortgage to be the property of James R. Milner, and subjected it, also, to the payment of plaintiff's debt — subject, however, to the rights of the then holders of the same — and found the other issues in favor of Mrs. Milner. After taking the usual steps to preserve their exceptions, both parties appealed.

White & McCammon, for appellant. Heffernan & Heffernan, for respondent.

BLAND, P. J. (after stating the facts).

1. The evidence is that James R. Milner as early as 1880 was a real estate and loan agent, and as such had fraudulently converted money and property of his clients to his own use, and in this manner became indebted to them, and continued to be indebted to divers persons, and was in 1881 insolvent, and has continued insolvent down to this time, so that there is no question that the voluntary conveyance of real estate to his wife in 1884 was fraudulent, in law, as to his existing creditors; and we think that it was also fraudulent as to his subsequent creditors, for the reason that where one has...