Carrell v. Meek

• Citation: 137 S.W. 19,155 Mo. App. 337
• Parties: CARRELL v. MEEK, Sheriff.
• Decision Date: 01 May 1911
• Court: Court of Appeal of Missouri (US)

137 S.W. 19

155 Mo. App. 337

CARRELL v. MEEK, Sheriff.

Kansas City Court of Appeals. Missouri.

May 1, 1911.

1. FRAUDULENT CONVEYANCES (§ 295) — INJUNCTION —EVIDENCE.

In an action to enjoin the sale of land under execution, evidence held to show that a conveyance of the land by the execution debtor through his brother to his wife, the plaintiff in the injunction suit, was not in good faith, but was without consideration and designed to defraud the grantor's creditors.

2. EXECUTION (§ 171)—INJUNCTION — RIGHT TO REMEDY.

Where an execution debtor has in good faith transferred land to his wife to invest in her the title to property purchased with her separate money, she is entitled to injunction against the sale of the property under execution against him, under Rev. St. 1909, § 2534, providing that injunction will lie in cases where a cloud would be put on the title of real estate being sold under execution against a person having no interest therein at the time of sale.

3. FRAUDULENT CONVEYANCES (§ 215)—REMEDIES OF CREDITORS—PERSONS ENTITLED TO ASSERT INVALIDITY.

A person assaulted becomes a creditor of the assailant from the time the assault gives a valid demand for damages, as affecting the right to question a conveyance by the assailant in fraud of creditors.

4. FRAUDULENT CONVEYANCES (§ 208)—REMEDIES OF CREDITORS—PERSONS ENTITLED TO ASSERT INVALIDITY.

A deed executed by a debtor to defraud creditors is void as to a creditor's demand which arose between the execution and delivery of the deed and the filing of the deed for record.

Appeal from Circuit Court, Daviess County; Arch B. Davis, Judge.

Action by George Ann Carrell against Porter F. Meek, Sheriff of De Kalb County. From a judgment for defendant, plaintiff appeals. Affirmed.

Chas. C. Crow and John S. Boyer, for appellant. Hewitt & Hewitt, for respondent.

JOHNSON, J.

This is a suit in equity to enjoin defendant, the sheriff of De Kalb county, from selling land belonging to plaintiff, under an execution issued to enforce the collection of a judgment recovered against the husband of plaintiff. A temporary order was issued and served, a change of venue was taken to Daviess county, and a trial of the cause in the circuit court of that county resulted in a judgment dissolving the injunction, dismissing the bill and assessing damages on the injunction bond. Plaintiff appealed.

The execution in question was issued on a judgment for $250, and costs recovered in the circuit court of De Kalb county May 6, 1909, by Isaac Clark against Burr H. Carrell, the husband of plaintiff. On February 18, 1909, Carrell assaulted Clark, and the judgment mentioned sustained the cause of action Clark alleged inured to him from the assault. Carrell and his wife lived at Clarksdale, De Kalb county. He had been in the dramshop business, but retired some time before 1908, and was engaged in no active business during the period of the events we shall review. He owed no debts, and owned several improved business lots in Clarksdale, from which he collected and used the rents. On July 16, 1908, plaintiff and his wife conveyed this real estate (all he owned except his homestead) to his brother, L. J. Carrell, a farmer living near Clarksdale. The consideration expressed in the deed was $6,000, the reasonable value of the property. In payment of the consideration his brother delivered to him a promissory note for $6,000, due in one year signed by his brother and his brother's wife. The deed was acknowledged on the day of its date, but was not filed for record until February 20, 1909. On the day following the execution of the deed Carrell indorsed and delivered the $6,000 note to plaintiff. There is evidence to the effect that this transaction was in good faith. The explanation...