Citizens Bank v. Burrus

• Decision Date: 23 December 1903
• Citation: 77 S.W. 748,178 Mo. 716
• Parties: CITIZENS BANK v. BURRUS et al., Appellants
• Court: Missouri Supreme Court

77 S.W. 748

178 Mo. 716

CITIZENS BANK v. BURRUS et al., Appellants

Supreme Court of Missouri, First Division

December 23, 1903

Appeal from Scotland Circuit Court. -- Hon. E. R. McKee, Judge.

Reversed.

E Scofield, Pettingill & Myers, J. M. Doran and J. M. Jayne for appellants.

(1) The general rule is that before a creditor can maintain a creditor's bill he must show he has exhausted his remedy at law or he must show that he has no adequate remedy at law and should he fail to make out a case entitling him to equitable relief his petition should be dismissed. Humphrey v. Milling Co., 98 Mo. 542; Pom. Eq. Jur. (2 Ed.), sec. 1415; Bank v. Packing Co., 138 Mo. 94. Respondent has an adequate remedy at law. The securities were perfectly solvent and an execution against them would have made its debts, or it could have garnisheed the appellant, W D. Burrus, and have reached any property it could reach by reason of this creditor's bill. (2) To create an estoppel, the person to be estopped must have been a party to the transaction, or have knowingly received some of the benefits. Bigelow on Estop. (3 Ed.), 484; Blodgett v Perry, 97 Mo. 273; McClain v. Abshire, 72 Mo.App. 395; Alkire Gro. Co. v. Ballenger, 137 Mo. 369. (3) Sureties may require suit to be brought, but they must comply with section 4500, Revised Statutes 1899, and should give notice as required by said section. Suit must be commenced within thirty days after service of notice and proceeded with with due diligence in the ordinary course of law to judgment and execution. R. S. 1899, sec. 4501. Note the language of this section: "In the ordinary course of law, to judgment and execution." In connection with this, we call the court's attention to the petition. A party is bound by the statement made in his own pleadings. Knoop v. Kelsey, 102 Mo. 291. (4) It is not claimed by respondent that Charles Burrus ever made any statements to it that he owned any property or that it loaned the money on the faith of any statement that Charles Burrus may have made to it in reference to any property he had or claimed to own.

Smoot, Boyd & Smoot and Mudd & Wagner for respondent.

(1) Under the old equity practice, securities had the right by bill "quia timet" to compel creditors to allow the use of his name or proceed himself against principal debtor. Peters v. Linenschmidt, 58 Mo. 464; Sisk v. Rosenburger, 82 Mo. 46. (2) Insolvency is sufficient after judgment to authorize a creditor's bill. The law does not require a useless proceeding. Turner v. Adams, 46 Mo. 95; Pendleton v. Perkins, 49 Mo. 565. (3) Where it is shown that an execution would be unavailing, the law does not require it. Padock Hawley Co. v. McDonald, 61 Mo.App. 559; Turner v. Adams, supra; Dodd v. Levy, 10 Mo.App. 121. (4) The wife held the effects of the husband in trust for his creditor whether the conveyance was fraudulent or not, and the proper and appropriate remedy of the creditor is by bill in equity. Iron Co. v. McDonald, 61 Mo.App. 567. (5) It is not sufficient that there is a remedy at law, but must be as efficient to the ends of justice as the remedy in equity. Iron Co. v. McDonald, 61 Mo.App. 559. (6) The creditor can remove fraudulent conveyances after judgment. Patton v. Bragg, 113 Mo. 595. (7) A court of equity, one acquiring jurisdiction, will and can render any judgment consistent with facts proved and stated. Green & Meyers' Practice, sec. 543. (8) Defendants having neither raised the question of misjoinder or nonjoinder of parties, either by demurrer or answer to second amended petition, the law creates for them a waiver. Boland v. Ross, 120 Mo. 208; R. S. 1899, sec. 602. (9) The law presumes that property acquired by wife during coverture was paid for with the means of the husband. Crook v. Tull, 111 Mo. 283; Sloan v. Torry, 78 Mo. 625. (10) A married woman can make an estoppel by conduct as a femme sale where it relates to her separate estate. Ranners v. Gerner, 80 Mo.App. 483; Cottrel v. Spiess, 23 Mo.App. 35; Ingalls v. Ferguson, 59 Mo.App. 299.

OPINION

ROBINSON, J.

This is a suit in equity by the Citizens' Bank of Memphis, Missouri, a judgment creditor of Charles Burrus, to set aside as fraudulent a conveyance from said Charles Burrus and wife, Mary, to William Burrus, of 153 acres of land in Scotland county, and to subject certain notes held by Mary Burrus, amounting in the aggregate to $ 1,055, to the payment of judgments held by plaintiff, aggregating the sum of $ 996, against said Charles Burrus and several securities who signed notes with him at plaintiff bank, which said securities have also been named as defendants in this proceeding.

The petition sets out the fact of the rendition of judgments in 1899 in favor of plaintiff, the insolvency of Charles Burrus, and of his ownership of a certain tract of land in Scotland county known as Burrus home place, comprising about 700 acres, together with a large amount of personal property thereon; the sale and conveyance thereof by said Charles Burrus, and the afterpurchase of the land in controversy from the Scotland County National Bank with the proceeds accruing from the sale of the former tract; the conveyance of the latter tract in the name of his wife, Mary Burrus, to defraud his creditors and of her after-conveyance of said tract to William Burrus, a brother of Charles Burrus. The petition then alleges that the purchase price for the latter tract was all paid by said William Burrus to Mary Burrus, except the sum of $ 1,000, for which sum the said William executed his two promissory notes for $ 500 each, payable to the order of Mary Burrus, in three and six months, respectively, after the date thereof, which notes it is further averred are still held by the said Mary Burrus and remain unpaid. The petition then sets up the fact that the judgments declared on were obtained on account of money borrowed from plaintiff by the defendant Charles Burrus in 1896, evidenced by certain promissory notes upon which the defendants Breedlove, Brem, Ladd, Shawley, Houston and Smith had signed as sureties, and that said sureties had notified plaintiff that they desired it to prosecute its claims to judgment, and also requested it to institute this proceeding to have the conveyance of the above named land set aside as fraudulent. The petition then proceeds as follows:

"Plaintiff further alleges and charges the facts to be, that all the judgments hereinbefore mentioned, were and became liens upon all the real estate owned, either in law or in equity, by the said Charles R. Burrus." Further alleges that said Burrus is wholly and absolutely insolvent and is not the owner of any property that can be seized and sold on execution, except that herein mentioned and described.

"Plaintiff further alleges and charges that it is wholly remediless by or through the ordinary process or proceedings at law against C. R. Burrus. That all debts, for which said judgments were rendered, were the individual debts of said Charles R Burrus, and the plaintiff and the parties owning said judgments, were, before the institution of the suits thereon, notified by each and all of the securities to proceed to the collection of said debts against said C. R. Burrus, he being the principal and party primarily liable for the payment of the same. That in equity and good conscience, he ought to pay for the same, and the property owned by him and fraudulently conveyed, as hereinafter alleged, ought to be subjected to the payment of the aforesaid judgments.

"Plaintiff further alleges and charges the facts to be, that on or about November 15, 1897, the defendant C. R. Burrus resided with his wife, the said defendant Mary E. Burrus, on a large farm, situated in Mt. Pleasant township in Scotland county, Missouri, the title to same being in said C. R. Burrus, he, in fact, being the owner of the same which consisted of about 700 acres. That said C. R. Burrus, on or about said date, sold said farm and with the proceeds arising from said sale of said farm, purchased the north half of the southeast quarter, and the northeast fourth of the southwest quarter, and thirty-three acres, being all of that part of the southeast fourth of the northwest quarter, lying west of Memphis and Edina public road, and thirty acres being all of that part of the southeast fourth of the southwest quarter, lying west of said public road, all in section eleven, township sixty-four, of range twelve, in Scotland county, Missouri, for the price and sum of $ 5,500. That he purchased the same of the Scotland County National Bank, and he had title and conveyance to same made to and in the name of the defendant, Mary E. Burrus, his wife. That at the time said conveyance was made, said C. R. Burrus owed the debts herein sued for. That said deed is recorded in book 61, page 159, of the records of said county. That said deed was made by said Chas. R. Burrus for the purpose of hindering, delaying and defrauding his creditors, and same was accepted by his wife, Mary E. Burrus, for the purpose and with the intention of so hindering, delaying and defrauding the creditors of said C. R. Burrus. That afterwards, in the fall of 1898, for the purpose of complicating said transaction and with the fraudulent purpose and intent of hindering, delaying and defrauding the creditors of the defendant, C. R. Burrus, the said defendant, Mary E. Burrus and Chas. R. Burrus, conveyed the aforesaid land to the defendant, Wm. D. Burrus, and the same was received and accepted by the said defendant, Wm. D. Burrus, with the intent and for the purpose of hindering, delaying and defrauding the creditors of said Chas. R. Burrus. That both of said deeds and conveyances were without consideration and voluntary, and made for the purpose aforesaid.

"Plaintiff,...