Burke v. Flournoy

• Decision Date: 31 August 1835
• Citation: 4 Mo. 116
• Parties: BURKE ET AL. v. FLOURNOY, W. &. D. S. LAMME.
• Court: Missouri Supreme Court

4 Mo. 116

BURKE ET AL.

v.FLOURNOY, W. &. D. S. LAMME.

Supreme Court of Missouri.

August Term, 1835.

MCGIRK, J.

Flournoy & Lammes, brought a bill in the Circuit Court of Clay county, against Burke and his infant children. The bill charges that in June, 1832, certain tracts of land were sold by the sheriff of Clay county on several executions issued from the clerk's office of the Circuit Court of Clay county against Burke at the suit of several persons, among whom Flournoy was one, and that at the sale Amos Rees, Michael Arthur and David R. Atchison become the purchasers and that the sheriff made a deed to them for the land in due form of law. The bill farther alleges that afterwards, on the 15th of September, the purchasers made a deed of conveyance to the complainants, for the lands which was in due form of law, &c. The bill farther shows that at the time of the sale of the sheriff, Burke had no legal title to the land. But that before that, Burke had bought the land of one Joshua Broyles for the consideration of four hundred dollars. The bill farther charges that Burke caused Broyles to make a deed of said land to his infant children with a view to defeat and defraud the above named creditors; that when Broyles made said deed, Burke was greatly indebted and in insolvent circumstances; that he paid for the land out of his, Burke's, own money. Then prays that the deed from Broyles to the children may be set aside, and that Broyles may convey the land to the defendants.

Samuel Burke answers the bill: he admits that the land was purchased with his money, but says it was not done with a view to defraud creditors, but with a view to secure his wife and children in a permanent home: he admits at the time he made the purchase he was largely indebted, but not beyond his means to pay, if his creditors had been indulgent, as they promised to be, denies all intent to commit fraud, &c.

The guardian of the children denies all knowledge of the matter. The cause was set down for hearing, the complainants gave evidence of the execution and judgment, &c.

The court decreed that the deed from Broyles was void. The court farther decreed that Broyles should convey the land to the complainants by a given time, and if that were not done then a commissioner should do it.

It is objected to this decree, first, that it is erroneous in decreeing any thing against Broyles, as he was no party to the suit. This objection is beyond doubt a good one, Broyles should have been a party; he is not bound by this decree. It is next objected that Rees, Atchison and Arthur should have been made parties. This objection is good also. The rule is that all parties in interest should be made parties to the suit. This is more apparent when we look to the deed of these persons...