Dalton v. Barron
| Decision Date | 14 March 1922 |
| Citation | 239 S.W. 97,293 Mo. 36 |
| Parties | G. W. DALTON, Appellant, v. WILLIAM N. BARRON, JAMES J. BARRON and MOLLIE DUNKY |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. Almon Ing, Judge.
Reversed and remanded.
Sam M Phillips, E. R. Lentz, Ed. L. Abington and Atkinson, Rombauer & Hill for appellant.
(1) The plaintiff before instituting the present suit to set aside the fraudulent conveyance from Mollie Dunky to Barron did not have to exhaust his legal remedies. Plaintiff would not be denied redress in a court of equity, simply because, if such be the fact, he had an adequate remedy at law against some party other than the defendant Dunky. Simpson v Smith, 196 Mo.App. 523; Lime & Cement Co. v Bank, 158 Mo. 272; Lenox v. Earls, 185 S.W. 234; Pocoke v. Peterson, 256 Mo. 501. (2) The plaintiff had two remedies which he could pursue with reference to the property fraudulently conveyed from Mollie Dunky to the defendant Barron: First, he could have had an execution issued and levied on this property, which is now in the name of the defendant Barron, and could have put the property up and sold it, and if he desired bought it in at the sale; or, plaintiff could have pursued the method pursued in this case. Welch v. Mann, 193 Mo. 326; Oldham v. Wade, 273 Mo. 231; Spindle v. Hyde, 247 Mo. 32; Nichols & Sheppard Co. v. Hubert, 150 Mo. 624; Natl. Bank v. Coran, 109 Mo. 51; Barrett v. Foote, 187 S.W. 67. (3) There are two classes of creditor's bills (to which character of litigation the instant suit belongs): one to reach the equitable assets or property of the debtor on which an execution at law cannot be levied; and the other in aid of an execution at law, as to set aside an encumbrance or a transfer of property made to defraud creditors. In the first class the creditor must allege and show that he has exhausted his remedy at law, while in the second it is sufficient to show that his claim has been reduced to judgment. State Bank v. Belk, 94 N.W. 618; Hodge v. Gray, 68 N.W. 979; Newman v. Willets, 52 Ill. 101; Barber v. McMicking, 155 N.W. 387; Wadsworth v. Schisselbauer, 19 N.W. 390. (4) Defendant takes the position that the plaintiff cannot maintain this action against him for the reason that it has an adequate remedy at law against the Wright-Dalton-Bell-Anchor Store Company. It has been held repeatedly in this State that the fact that plaintiff may have a remedy by action at law against a third person, as for instance on a bond, furnished no ground for refusing equitable relief. Lime & Cement Co. v. Bank, 158 Mo. 272; Roll v. Company, 52 Mo.App. 60; Simpson v. Smith, 196 Mo.App. 523; Kelly Co. v. Gail, 34 Mo.App. 94; Peters Shoe Co. v. Arnold, 82 Mo.App. 1; McDonald v. Hoover, 142 Mo. 484; Gentry v. Field, 143 Mo. 399. (5) To oust equity jurisdiction a remedy at law must be so complete that it obtains at present a full, complete and adequate remedy at law. Pocoke v. Peterson, 256 Mo. 503; Hanson v. Neal, 215 Mo. 256. Where it is doubtful whether relief can be had at law, equity will take jurisdiction. West v. Wayne, 3 Mo. 16; Barrington v. Ryan, 88 Mo.App. 85. (6) Defendant next contended in the trial court that the plaintiff has not pleaded the acts of fraud specifically enough; that is to say, that he has charged fraud in generalities and not specifically. The petition is not at all guilty of the charge thus preferred. (a) We charge specifically, and narrate the facts specifically, that the transfer of the property from Mollie Dunky to Barron was made after institution of the suit of Orchard v. Wright-Dalton-Bell-Anchor Store Co., and Mollie Dunky. The transfer of property so made after suit begun is a badge of fraud. Mason v. Perkins, 180 Mo. 702; McCullom v. Crain, 74 S.W. 650; 20 Cyc. 444, note 93. (b) It is also further alleged specifically that when Mollie Dunky made the transfer of the property described in plaintiff's petition to William N. Barron, she absolutely stripped herself of all property of all kinds which she owned, and that such fact was known to the defendant Barron. Such a transfer of all the property of the debtor is a badge of fraud. 20 Cyc. 449; Benne v. Schnecke, 100 Mo. 250; Segar v. Thomas, 107 Mo. 635; Jacob Co. v. May, 78 Mo.App. 323. (c) It is further alleged specifically that this property was worth at the time of the sale the sum of fifteen thousand dollars, and that it was sold for the sum of four thousand dollars, and that such sum was grossly inadequate. That inadequacy of consideration is a badge of fraud. Auction & Com. Co. v. Mason, 16 Mo.App. 473; Robards v. Robards, 15 Mo. 459; Curd v. Lackland, 49 Mo. 454; Ames v. Gilmore, 59 Mo. 549; Ross v. Crusinger, 7 Mo. 259; 20 Cyc. 441; Knoop v. Kelsey, 121 Mo. 642; Assn. v. Steimke, 68 Mo.App. 52. (d) The petition charges that the sale to Barron of the property by Mollie Dunky was made secretly and was not advertised in the usual manner. All the facts concerning this transaction were specifically plead in the petition. Such secrecy or undue haste in the sale of property is a badge of fraud. Brewing Assn. v. Steimke, 68 Mo.App. 52; 20 Cyc. 447, 448. (e) The transfer of all or nearly all of a debtor's property, especialy when he is insolvent, or greatly embarrassed financially, is a badge of fraud. Ringtold v. Wagoner, 14 Ark. 69; Benne v. Schenecke, 100 Mo. 250; Grocery Co. v. May, 78 Mo.App. 323; 20 Cyc. 449; Bank of Hayti v. McElwain, 219 S.W. 75. (f) There is another badge of fraud alleged against the defendant Barron, and that is in one of the cases, the petition alleges that Barron had this deed made to William N. Barron and James J. Barron, when in truth and in fact there was no such a person as James J. Barron, but on the other hand, that he was a fictitious person. Unusual instances of this kind attending a transaction are a badge of fraud. (g) It is charged that Mollie Dunky made the deed in question with the fraudulent intent to cheat, hinder and delay her creditors, and that the defendant Barron took and accepted said deed with a knowledge of her intent, and that the intention on his part to aid and assist her in carrying out her fraudulent design. This makes the deed in question fraudulent and void as against creditors. Stewart v. Authorweite, 141 Mo. 562; Garesche v. McDonald, 103 Mo. 1; Stone v. Spencer, 77 Mo. 356; Shelley v. Boothe, 73 Mo. 74; Johnson v. Sullivan, 23 Mo. 474; Kurtz v. Troll, 86 Mo.App. 649; Christian v. Smith, 85 Mo.App. 117; Mercantile Co. v. Troll, 79 Mo.App. 558; Rubber Co. v. Bunn, 78 Mo.App. 55; Sellers v. Bailey, 29 Mo.App. 174; Clark v. Finn, 12 Mo.App. 583; Findley v. Findley, 93 Mo. 493.
J. F. Woody and Arnot L. Sheppard for respondent.
(1) Therefore, Mollie Dunky's purpose in executing these deeds and Barron's purpose in purchasing said property, are matters with which plaintiff has no concern unless he was damaged thereby. Johnson v. U. Rys., 247 Mo. 326; Thompson v. Newell, 118 Mo.App. 405; Stacey v. Robinson, 168 S.W. 264; Vlates v. Catsigianis, 202 S.W. 441. (2) Before resorting to equity, a creditor must exhaust his remedies at law. Coleman v. Hagey, 252 Mo. 102; Merry v. Fremon, 44 Mo. 521; Mullen v. Hewitt, 103 Mo. 650; Mellier v. Bartlett, 106 Mo. 390, 391; Davidson v. Dockery, 179 Mo. 173; Humphrey v. Milling Co., 98 Mo. 552, 553; Brown v. McKown, 265 Mo. 320; Gill v. Newhouse, 178 S.W. 499; Littick v. Means, 195 S.W. 729; State ex rel. Taafe v. Goggin, 191 Mo. 482; Steele v. Reid, 223 S.W. 885. (3) Where the judgment creditor has a legal remedy against others jointly bound with the grantor, he must first exhaust that remedy against the co-obligors, before bringing a bill in equity to set aisde a deed made by one of the joint debtors. Eiler v. Lacy, 137 Ind. 436; Stark v. Lamb, 167 Ind. 645; Mfg. Co. v. Lee, 33 Ind.App. 38; Riddick v. Parr, 11 Iowa 733; Lovejoy v. Chapin, 115 N.Y.S. 949; Billhoefer v. Heubach, 15 Abb. Pr. 143; Field v. Chapman, 13 Abb. Pr. 326; Slatter v. Carroll, 2 Sandf. Ch. 580; Voorhees v. Howard, 4 Keyes 383; Reed v. Wheaton, 4 Paige, 633; Child v. Bruce, 4 Paige, 316; Burne v. Kunzmann, 19 A. (N. J.) 667; Randolph v. Daly, 16 N.J.Eq. 313; Wales v. Lawrence, 36 N.J.Eq. 207; Boice v. Conover, 54 N.J.Eq. 541; Lupton v. Lupton, 3 Cal. 120; 5 Ency. Pl. and Pr., 463, 495; 12 R. C. L. 637. (4) The assignee of a judgment creditor occupies identically the same position with respect to the judgment as his assignor, and takes no greater rights by reason of his purchase than were possessed by him from whom he purchased. Machinery Co. v. Ramlose, 210 Mo. 653, 654; Lionberger v. Baker, 14 Mo.App. 357; Archer v. Ins. Co., 43 Mo. 442; Bidwell v. Ins. Co., 40 Mo. 42; Bank v. Ruffin, 190 Mo.App. 135; Bobb v. Taylor, 56 Mo. 313; Hill v. McPherson, 15 Mo. 204; Calhoun v. Albin, 48 Mo. 304; Weaver v. Gray, 37 Ind.App. 35; Safe Dep. & Safe Co. v. Adams, 113 N.E. 277; 5 C. J. 978, 979; 37 Cyc. 380.
-- Appellant is the assignee of a judgment against Mollie Dunky and the Wright-Dalton-Bell-Anchor Store Company and instituted this suit to set aside a conveyance which the petition alleges was made by Mrs. Dunky to her co-defendants for the purpose of hindering, delaying and defrauding creditors. A demurrer to the petition was filed and sustained. Appellant refused to plead further; judgment was rendered accordingly, and the case is here by appeal.
The petition alleges, in substance, that respondent William N Barron is a lawyer, abstractor and real estate dealer and is familiar with titles, records and values of real estate in Butler County and particularly with...
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