C. Aultman & Co. v. Booth

• Decision Date: 04 June 1888
• Citation: 8 S.W. 742,95 Mo. 383
• Court: Missouri Supreme Court
• Parties: C. AULTMAN & CO. v. BOOTH et al.

8 S.W. 742

95 Mo. 383

C. AULTMAN & CO. v. BOOTH et al.

Supreme Court of Missouri.

June 4, 1888.

FRAUDULENT CONVEYANCES — CONSIDERATION — PAROL AGREEMENT.

Where the owner of land, being old and infirm, conveyed it to his nephew in consideration of support during life, under an agreement to convey back to him in case he became dissatisfied, and the land was reconveyed to him according to agreement, and then conveyed by him to the nephew's wife, such reconveyance by the nephew is valid as against his creditors, although the agreement was by parol, since the giving of the deed was a waiver of the defense of the statute of frauds.

Appeal from circuit court, Greene county; W. F. GEIGER, Judge.

Proceeding in equity by C. Aultman & Co., a corporation, against John M. Booth, Sarah Booth, and Eliza Twigg, to set aside certain conveyances. Judgment for defendants, and plaintiff appeals.

Francis H. Sheppard, for appellant. O. H. Travers, for respondents.

NORTON, C. J.

This is a proceeding in equity in which it is alleged that plaintiff corporation obtained judgment in the circuit court of the United States for the Eastern division of the Western district of Missouri, on the 18th of April, 1883, against the defendant John M. Booth for $873.46; that execution issued on said judgment, under which the N. E. ¼ of N. W. ¼ and S. E. ¼ of N. E. ¼ of section 23, township 31, range 21, situated in Greene county, were sold on August 1, 1883, by the marshal of said court, as the property of said Booth, and plaintiff became the purchaser, and received the marshal's deed therefor. This suit is brought to vacate a certain deed made by said Booth and wife, dated April 7, 1883, conveying said lands to Eliza Twigg, and a certain deed from said Twigg, dated April 10, 1883, conveying said lands to defendant Sarah M. Booth. It is alleged that these deeds were voluntary, and made without consideration, for the purpose of defrauding plaintiff in the collection of its debt, and for that reason the court is asked to declare them void. The answer denies all fraud, and sets up a special defense which the evidence hereinafter considered will disclose. On the trial, judgment was rendered for defendants, from which plaintiff has appealed, and insists that under the evidence the decree should have been for plaintiff.

Plaintiff introduced defendant Twigg as a witness, who testified as follows: "I am 73 years old. I lived in Cloud county, Kan., before coming here, on my farm of 160 acres. Defendant John Booth is my nephew. His mother and my wife were sisters. He lived on a place adjoining mine in Kansas. My farm was a little better than his. Aultman & Co. sued him for a machine he bought and had not paid for. He has no property in Kansas now. He lives in south-east corner of Polk county, near Greene county line. I did have a little store there; am running it still. I bought the land in Polk county, and paid what has been paid on it. It is not all paid for. Don't know this land by the numbers. Don't know the sections. The lands do not lie together. The northern forty in Greene county is the best. Don't know what it is worth. Mrs. Booth has a crop on it now. I sold my farm in Kansas; sold and traded it together. Got five or six hundred dollars in money, I believe; also two horses. Don't know what they were worth, — $50 or $75 each I suppose. That was all I got for the farm. There was no water on the Kansas farm except well water. I sold the southern forty in Greene county to Gray. Don't recollect when. Got some money, and something out of the store. I don't recollect what time I sold these forties to Booth. It was about two years ago. I was old and crippled up when I came to the country, and Booth and his wife...