Craig v. Zimmerman

• Decision Date: 31 October 1885
• Citation: 87 Mo. 475
• Parties: CRAIG v. ZIMMERMAN et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 475

CRAIG

v.ZIMMERMAN et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Buchanan Circuit Court.--VINTON PIKE, ESQ., Special Judge.

REVERSED.

J. W. Boyd and E. C. Zimmerman for appellants.

(1) The decree is not warranted by the evidence. The evidence does not show that appellants received the deed from Bender without any consideration and with knowledge that Bender held the title fraudulently. (2) The evidence shows that Albin had more than sufficient property to pay the debt and, therefore, respondent's suit cannot be maintained. Payne v. Sheldon, 63 Barb. 169; Jennings v. Howard, 80 Ind. 216. (3) The court should not have set aside the deed from Tootle to appellants. An innocent purchaser can convey a good title to one having notice. Funkhouser v. Lay, 78 Mo. 458.

H. M. Ramey for respondents.

BLACK, J.

The plaintiff is a judgment creditor of Albin. By this suit he asked and obtained a decree setting aside certain deeds and subjecting the lot in question to sale for the payment of his debt of which there is about one thousand dollars unpaid. In 1870 the defendant, Albin, made a mortgage to the Home Stock Insurance Company to secure a stock note for five thousand dollars. This mortgage was foreclosed in 1875 and the property sold thereunder, and the defendant, Bender, became the purchaser of some seven or eight parcels including the lot in question. A judgment was recovered by T. A. King in March, 1874, against Albin and Matney. Howard King also obtained judgment against the same parties in May, 1874, Bender purchased the Howard King judgment for a small consideration, had execution issued thereon and in 1879 again purchased the same and other property at a sale thereunder. In October, 1880, Bender conveyed the lot in question to defendant, Zimmerman, who in December of the same year acquired a quit-claim deed from Tootle. From the decree setting aside these deeds the defendant, Zimmerman, appealed.

The evidence shows that, in 1873, Albin became embarrassed. The insurance company determined to go into liquidation, and to that end made a call upon Albin for three hundred and ninety-five dollars. Albin did not pay this amount, and the company at once foreclosed the mortgage for the whole amount of the note, then over six thousand dollars, and assigned the judgment to Bender for the three hundred and ninety-five dollars. At that time Albin was a director of the insurance company and consented to the foreclosure for the whole amount, when he knew the call only was due. It is with this assigned judgment that Bender was enabled to buy in the property valued at from three thousand to five thousand dollars. Bender thereafter conveyed to Albin's wife two of the lots without any consideration. The evidence shows beyond doubt that the whole scheme of selling the property under the Howard King judgment and the judgment foreclosing the mortgage, was a contrivance by Bender and Albin to place the property out of the reach of the latter's creditors and, therefore, fraudulent.

Zimmerman claims to be a bona fide purchaser for value from Bender. In 1878 there was a sale of property of Matney and Albin under executions issued on the two King judgments. Both Bender and Zimmerman attended this sale and ran the property up on T. A. King, who became the purchaser of most of the property then sold. They did this in the interest of Albin. At this sale, Zimmerman purchased and received a deed for several parcels of property and then without consideration quitclaimed the same to Bender. These two deeds last mentioned were never put to record. Zimmerman afterwards purchased from T. A. King the same property which the latter bought at that execution sale; none of the property included in the mortgage was included in the deed to T. A. King. When Bender purchased the mortgaged property under the junior King judgment, and which judgment he then owned, he at the same time had sold and bought this property sold to King, and thereafter without consideration conveyed the same by quit-claim deed to Zimmerman. Albin says he and Bender and Zimmerman acted in concert in all of these transactions with a view of preventing the property from being sacrificed. This Zimmerman denies. The evidence shows that these parties were all on friendly terms and consulted together with respect to Albin's affairs, on different occasions. The number of deeds made by and between these parties and their character are significant facts. These transactions and circumstances, and others which we need not detail, show that Zimmerman must have had full and complete...