Buck v. Ashbrook

• Decision Date: 28 February 1875
• Citation: 59 Mo. 200
• Parties: VICTOR B. BUCK, Respondent, v. MAHLON ASHBROOK, and MARY ANN ASHBROOK, Appellants.
• Court: Missouri Supreme Court

59 Mo. 200

VICTOR B. BUCK, Respondent,

v.MAHLON ASHBROOK, and MARY ANN ASHBROOK, Appellants.

Supreme Court of Missouri.

February Term, 1875.

Appeal from Buchanan Common Pleas.

Ensworth with Hill & Carter, for Appellants.

I. The lots are not subject to the payment of respondent's debts. (Sto. Eq., § § 1068, 1072; Lead. Cas. Eq., vol. 2. part 2, pp. 334, 336, side p. 685, &c. Hale vs. Coe, 49 Mo., 181; Gates vs. Hunter, 3 Mo., 511; Craig vs. Leslie, 3 Wheat., 578.)

A. H. Vories, for Respondent.

SHERWOOD, Judge, delivered the opinion of the court.

This is a proceeding in the nature of a bill in chancery, brought against the defendants, who are husband and wife, by which it is sought to subject certain real estate held by the wife, to the debts of the husband, on the grounds that he was in embarrassed circumstances, and largely indebted, and in order to hinder, delay and defraud his creditors, both prior and subsequent, caused the real estate which he bought from time to time, to be conveyed to his wife; that during the time that he was thus engaged, that is to say, from the year 1859 to the year 186-, he did business in the name of his wife, borrowed money, dealt as a merchant in goods, wares and merchandise, falsely and fraudulently representing that his wife was a sole trader; that he had full power to contract and to do business in her name, and that her property would be bound by such contracts, and that the wife was doing all in her power to aid and abet her husband in his fraudulent designs of thus acquiring property, and of placing the same out of the reach of his creditors, by a conveyance to herself.

The defendants filed separate answers. That of the husband, Mahlon Ashbrook, admitted that he purchased the real estate in question and had the conveyance made to his wife; but claimed that this was done without any fraudulent intent, and that the purchase of such property was made with money which the wife derived through her father's will, and with the profits which he had realized by employing this money in business he had bought the property sought to be charged, and made the improvements thereon. He also admitted his insolvent condition from the time of his arrival in St. Joseph up to the time of filing his answer, and of his carrying on business in his wife's name, but denied that this was done to defraud his creditors, etc. The answer of the defendant, Mary A. Ashbrook, was of similar purport to that of her husband; and she admits that she knew that he was embarrassed and was using her name, both in the sign over his store, and also in buying goods, etc; but that she protested against such use of her name, etc., etc. The new matter of these answers was denied.

The court, upon hearing the testimony, gave judgment for the recovery of the plaintiff's debt, and decreed a sale of the property mentioned in the petition; but directed that such sale should be subject to a deed of trust executed by the defendant to secure Adam Flesher and others on a debt of the husband, and that out of the proceeds of such sale should be paid, first to the wife the sum of $3,000, then to the husband $1,000, for his homestead, and then that the plaintiff's debt should be satisfied.

The will referred to in the answers of the defendants, bequeathed eighty acres of land in Hocking County, Ohio, to the defendant, Mary A. Ashbrook, with the request that if sold its proceeds might be invested in her name; and by another clause of the will the proceeds of 116 acres of land in Fairfield county, in the same State, after certain deductions, were devised to her, with the request that the proceeds be invested in the name of Mrs. Ashbrook and her children alone. This will was that of James Chambers, the father of Mrs. Ashbrook; was probated in Ohio, and her...