Crook v. Tull

• Decision Date: 01 July 1892
• Citation: 20 S.W. 8,111 Mo. 283
• Parties: CROOK <I>et al.</I> v. TULL <I>et al.</I>
• Court: Missouri Supreme Court

20 S.W. 8

111 Mo. 283

CROOK et al. v. TULL et al.

Supreme Court of Missouri, Division No. 2.

July 1, 1892.

DEATH OF PARTIES — REVIVAL OF ACTION — HUSBAND AND WIFE — FRAUDULENT CONVEYANCES — HARMLESS ERROR — INTEREST ON JUDGMENT.

1. Where a husband is joined as party defendant in a suit against his wife merely in compliance with Rev. St. 1879, § 3468, requiring him to be so joined, and not for the purpose of obtaining any relief as against him, the suit may be continued against her after his death without reviving it in the name of his administrator.

2. Where one of several plaintiffs, who are copartners, dies pending suit, and the action proceeds in the name of the survivor, the objection that the action should have been revived in the name of his administrator comes too late when made for the first time on appeal, especially where the record does not show that the administrator of the deceased plaintiff had qualified as administrator of the partnership estate.

3. In an equity suit, permitting a party to testify over objection as to transactions concerning a deceased adverse party is harmless error where there is sufficient competent evidence in the case to prove the matters sworn to by such party.

4. The presumption of law is that property acquired by a wife during coverture was paid for with the means of her husband. Sloan v. Torry, 78 Mo. 625, followed.

5. Under Rev. St. 1879, § 2725, which provides that judgments "upon contracts bearing more than 6 per cent. interest shall bear the same interest borne by such contracts," a judgment which shows that it is rendered upon a note bearing 10 per cent. interest bears interest at that rate without any recital in the judgment to that effect.

6. Where judgment is rendered for debt and costs, it is proper to tax the costs for payment in favor of the officer entitled to them, where they have not been paid by the plaintiff.

Appeal from circuit court, Clark county; BEN E. TURNER, Judge.

Creditors' bill by John D. Crook, John C. Paxton, and Washington Hendson against Ella R. Tull and Dabney L. Tull. Plaintiffs obtained judgment against Ella R. Tull, and she appeals. Affirmed.

John D. Smoot, for appellant. Geo. T. Collins, for respondents.

MACFARLANE, J.

This suit is in the nature of a creditors' bill to charge certain real estate held in the name of defendant Ella R. Tull with the payments of certain judgments in favor of plaintiffs and against Dabney L. Tull, husband of said Ella. It is charged in the petition that on the 21st day of January, 1878, plaintiffs, John D. Crook, John C. Paxton, and Washington Hendson, as partners, obtained two judgments against Dabney L. Tull for $25 and $61.65 respectively, and costs; that said judgments were rendered upon notes bearing interest at 10 per cent. per annum; that executions on said judgments were issued and returned nulla bona; that the judgments were revived February 23, 1883, and transcripts filed in the office of the circuit clerk of the county, April 19, 1883, and duly recorded; that executions on these transcript judgments were also issued, but no property was found in the name of the defendant therein upon which to levy the same; that, after contracting the said debts, said defendant Dabney L. Tull, for the purpose of hindering, delaying, and defrauding his creditors, caused all his interest in both real and personal estate of which he was possessed to be conveyed to his wife, defendant Ella R. Tull; that all his own means and such as he made in business were vested in lands and personal property in the name of his said wife. It was charged that she held in that manner several hundred acres of land, and a large number of cattle, horses, sheep, and other personal property. The prayer was that the said lands be subjected to the payment of these judgments. The answer was a general denial. Before the trial, defendant Dabney L. Tull died. There was no revival of the cause, and the case was tried at the next term against the wife alone. After finding the correctness of the judgments and the amounts due thereon, the court found that, after contracting the indebtedness with plaintiffs, the said Dabney L. Tull transferred or caused to be transferred to defendant, his wife, all his land, — over 600 acres, — and all his personal property; that the husband had the full control and management of the estate; that his labor and skill were all devoted to the care and management of the same; and that he had no property in his own name out of which the debt could be made. The court found the facts as charged in the petition, and it was adjudged that the said judgments, with interest and costs as found, should constitute a lien and charge on said land, and that the same should be sold, etc. From this judgment, defendant appealed.

1. It is objected by defendant, in the first place, that under section 2201 of the statute no trial could be had until the third term after the death of Dabney L. Tull, unless the cause was first revived in the name of his administrator, and that therefore the trial was premature. It is undoubtedly true, as contended, that no suit can abate in case of the death of a party thereto until the third term after suggestion of the death, and a trial before that time, without a revival, could not properly be had. This rule only applies, of course, to such actions as require that the administrator of the deceased party would have been a necessary party to an original suit. We do not think the administrator of the deceased husband of defendant a necessary or proper party to the...