Crockett v. Maguire

• Citation: 10 Mo. 34
• Court: Missouri Supreme Court
• Decision Date: 31 March 1846
• Parties: CROCKETT & RISQUE v. MAGUIRE.

10 Mo. 34

CROCKETT & RISQUE

v.MAGUIRE.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM THE ST. LOUIS CIRCUIT COURT.

SPALDING, for Appellants. 1. Where there is a deed fraudulent because made to hinder and delay creditors, and subsequent conveyances are made by the fraudulent grantor, and by the fraudulent grantee, the title will pass by the subsequent deed, which is first in point of time. 3 Johns. Ch. R. 371; Anderson v. Roberts, 1 Day's R. 527, new series; Preston v. Crafeet, 18 Johns. 515; Anderson v. Roberts, on appeal, 15 Wend. 588. This is a case which is analogous in principle to the present, and the court held the vendee bound to inquire whether the recorded sheriff's deed was bona fide, as against another deed recorded subsequently, but of prior date and execution. 2. That the application for a re-hearing was in time. See 2 Smith's Ch. Pr. 18, 26, 27, showing that by the practice of the Chancellor, several weeks were allowed. Here the time is not regulated by statute, nor by rule of court. Till this is done, a re-hearing may be granted if applied for during the term wherein the decree is entered. 3. It is not too late to raise the question as to the legality of the proceedings at the hearing in the court below.

HAMILTON, for Appellee. 1. It is admitted that the appellee is a purchaser for a valuable consideration. On the point of notice, the case is clearly with him. The court gave credit to the answer in preference to Collins' testimony, and its finding will be treated by this court with not less respect than the verdict of a jury, and will not be reversed upon a mere difference of opinion as to the weight or credibility of evidence, upon a fact fairly submitted to it. No decree can be made against the answer, unless it be contradicted by two witnesses, or one witness and strong corroborating circumstances. 4 Mo. R. 62. 2. The recording of the deed from the sheriff to Neville previous to the conveyance by the trustee, and cestui que trust to Hubbard, is relied on by the complainants, in their bill; but a purchaser of land is not affected with constructive notice of anything which does not lie within the course of his title, or is not connected with it. If he finds a good conveyance to his vendor, he is not expected to look further, much less is he bound by a deed out of that title, as in this case. 7 Watts, 382; 10 Ohio, 83; 1 Johns. Ch. R. 573; 14 Mass. 303; 16 Mass. 418. The recording of the sheriff's deed was only evidence of notice to after-purchasers under the same grantor. 14 Pick. 224. A bona fide purchaser for a valuable consideration, from a fraudulent grantee, without notice of the fraud, will hold the property against the creditors of the fraudulent grantor, and the purchaser from the fraudulent vendee is preferred to one who buys from the vendor. 5 Mo. R. 296. 3. Hubbard also purchased without notice, and no notice was proven against Arnout, the immediate grantor of the appellee. It is now settled that having taken the property in payment of a precedent debt, does not affect the right of a party to be considered a purchaser for value. 5 Mo. R. 296; 16 Peters, 1; 11 Ohio, 172. 4. If Hubbard or Arnout had no notice, the appellee may avail himself of that fact whether he personally had notice or not. 7 Cowen, 360. So if the appellee had not notice, but the other parties had, the same rule will apply. 8 Johns. 137. 5. The appellants show no valid title to this title, for: 1st. The sale to Neville passed nothing, there being, in fact, no title in Witherill upon which the judgment and execution could act. The title was then outstanding. Neville at most, acquired but a mere equity, authorizing him to pursue the property in a mode effectual to divest the title, and attach it to his equity. This should have been done before the right of innocent parties had intervened. By acquiescence and neglect that right has been lost. We have united to the superior equity, the legal title itself. 2nd. By taking a voluntary confession of judgment from Witherill alone, Neville confined his action under the same, to the separate interest of Witherill. The bill alleges that this property was purchased by the firm, which was insolvent. Even then upon the supposition that Foster and Virginia participated in the fraudulent scheme charged, there was no separate interest in Witherill, which could have been the subject of levy and sale upon this judgment. 18 Johns. 159; approved in 2 Mo. R. 66; 1 Wend. 311; 4 Paige, 35. 6. By his deed to Foster, in trust for Mrs. Witherill, Collins supplied the means of practicing fraud. He and all claiming under him, are estopped from denying, as against an innocent third party, the true import, character, and design of that deed. 4 Mo. R. 511. 7. Collins was interested to destroy the appellees' title, as in accomplishing this, the covenant running with the same, in the hands of the appellee and still binding on him, would necessarily become extinguished. An interest in the event is decisive of his incompetency. 8. The questions made by the appellants, do not properly arise on this record. During the progress of the hearing, no ground of complaint to the action of the court appears to have existed on the part of the appellants. No exception was taken, no point of law or fact was distinctly presented to the notice of the court, and not until four days after the hearing and entry of the decree, do they move for a re-hearing, and the only exception taken is to the overruling of that motion. 7 Mo. R. 253; 8 Mo. R. 657, 702; 4 Mo. R. 501; Swearingen v. Newman, 4 Mo. R. 456.

SCOTT, J.

This was a bill in equity, brought by Crockett & Risque, the appellants, against the appellee, Maguire. The bill charges that Witherill & Foster purchased of Charles Collins, two lots of ground in St. Louis, and that for the purpose of defrauding their creditors, they caused Collins to convey said lots to Wm. P. Foster, the father-in law of Witherill, in trust for the use of Virginia Witherill, the wife of John Witherill, one of the persons above named of Foster & Witherill. Collins received no part of the purchase-money from Wm. P. Foster, or Virginia Witherill. This deed was dated February 2nd, 1839. On the 7th June, 1839, Foster, the trustee, and Virginia Witherill, conveyed the lots to Russell Hubbard, and afterwards by several intermediate conveyances, the lots passed to Maguire, the appellee. That Maguire, and each of those through whom he derives his title had notice of the fraud committed by Foster &...