Byrne v. Becker

• Decision Date: 31 March 1868
• Citation: 42 Mo. 264
• Parties: JOHN BYRNE, JR., Appellant, v. THEODORE H. BECKER et al., Respondents.
• Court: Missouri Supreme Court

42 Mo. 264

JOHN BYRNE, JR., Appellant,

v.THEODORE H. BECKER et al., Respondents.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Circuit Court.

This suit is brought, on the ground of fraud, to annul the title of defendant to a piece of realty in the city of St. Louis. Both parties claim under McCarthy: plaintiff, under a judgment in attachment; respondents, under a voluntary deed of trust made prior to the attachment, and a sale under the deed subsequent to the attachment. McCarthy kept a shoe-store on Market street, and also owned the realty in dispute. On the 22d of October, 1859, McCarthy executed two deeds of trust to Joseph W. Werner, as trustee of Douglass, Gazzam & Co.--the one conveying all the goods in his store, the other the realty in dispute--both to secure the same set of notes. At the sale under the realty deed of trust, Becker became the purchaser.

Other facts in the case appear in the opinion of the court.

On the trial, plaintiff asked for the following instructions, which the court refused, and plaintiff then and there excepted:

1. If the jury believe from the evidence that the deed of Robt. E. McCarthy to Werner, trustee of Douglass, Gazzam & Co., on the house and lot in controversy, was with the intent to hinder, delay, and defraud the creditors of McCarthy, and that at the date of its execution the indebtedness through which plaintiff acquired title existed, then the deed is inoperative to bar the rights of plaintiff, and the jury will find accordingly.

2. If the jury believe from the evidence that, at the time of the deed of trust given by Robert Emmet McCarthy to Werner, as trustee of Douglass, Gazzam & Co., on the house and lot, the subject matter of this litigation, the said McCarthy was justly indebted to Douglass, Gazzam & Co., but in a sum less than that secured by said deed of trust--but that the debt so secured was for a larger sum than the amount really due, and that it was so made with the intent to secure to said McCarthy the advantage of future purchases to be made by him of Douglass, Gazzam & Co., and with the intent to hinder, delay, or defraud the creditors of said McCarthy--then the transaction is fraudulent, and the jury should find accordingly.

3. If the jury believe from the evidence that the conveyance by Robert Emmet McCarthy to Werner, as trustee of Douglass, Gazzam & Co., on the house and lot, the subject matter of this suit, was not made in good faith, but with the intent to hinder, delay, or defraud creditors of said McCarthy, they should find the issue for the plaintiff.

The only instruction given by the court on the subject of fraud was in these words: “If the jury believe from the evidence in this cause that McCarthy, at the time he made the deeds of trust mentioned in the petition, was indebted to the plaintiff or any person other than the said Douglass, Gazzam & Co., and that such deeds were made to hinder, delay, or defraud the plaintiff or other creditors of his or their lawful demands, and that said Douglass, Gazzam & Co. knew of such fraudulent attempt, then the jury will find the first issue in the affirmative.” To the giving of which plaintiff duly excepted.

The jury having found both issues in the negative, and the court having given judgment for the defendants, plaintiff in due time moved for a new trial, which having been overruled, defendant then and there excepted and brought the case here by appeal.

A. J. P. Garesche, and Farish, for appellant.

Holmes & Martin, for respondents.

FAGG, Judge, delivered the opinion of the court.

This was a suit instituted in the Land Court for St. Louis county by the appellant, Byrne, for the purpose of having a conveyance to the respondent, Becker, of certain property in the city of St. Louis annulled and set aside. Both parties claimed title to the property under one Robert E. McCarthy. The plaintiff's title consisted of a conveyance by the sheriff of St. Louis county to him as the purchaser of the property, at a sale under a proceeding against McCarthy by attachment. Becker claimed under a sale made by a trustee, in pursuance of a deed of trust executed prior to the attachment. Upon the pleadings in the cause, two issues of fact were, by the direction of the court, submitted to a jury. The first was, whether the deed of trust was made by McCarthy with intent to hinder, delay, or defraud his creditors; and, second, whether the purchase made by Becker was made under any agreement or understanding between himself and the cestui que trusts that he would hold the same in trust for them. Both issues being found for the defendants, judgment was accordingly rendered for them, and an appeal taken to this court. There seem to...