Dalton v. Barron

• Decision Date: 14 March 1922
• Docket Number: No. 22180.,22180.
• Parties: DALTON v. BARRON et al.
• Court: Missouri Supreme Court

239 S.W. 97

293 Mo. 36

DALTON v. BARRON et al.

No. 22180.

Supreme Court of Missouri, Division No. 1.

March 14, 1922.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by G. W. Dalton against William N. Barron and others. Judgment for defendants on plaintiff's refusal to plead further after demurrer to the petition was sustained, and plaintiff appeals. Reversed and remanded.

Sam M. Phillips, E. R. Lentz, and Ed. L. Abington, all of Poplar Bluff, for appellant.

J. F. Woody and Arnot L. Sheppard, both of Poplar Bluff, for respondents.

JAMES T. BLAIR, J.

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 codefendants 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 reference to the parcel in question which is described; that June 10, 1901, Mollie Dunky, then Mollie Knight, represented to the Wright-Dalton-Bell-Anchor Store Company that she had good right to lease to It a lot in Poplar Bluff, and that, "deceived thereby, the store company accepted from her a lease of the property in question and other property for a term of over 16 years at an agreed rental of $40 per month"; that Mollie Knight, now Dunky, covenanted in the lease that she had good right, etc., and thereby became liable to the store company for any damages it might sustain in case of breach; that, in reliance upon the warranties in the lease, the store company entered into possession and expended large sums in improving the lot, whereof respondents Barron had full knowledge; that in 1903 George Orchard commenced an action in ejectment against the store company for the lot in question, to recover possession and for damages and rents and profits; that, in realization of her liability to the store company in case Orchard succeeded in his suit, Mrs. Dunky applied to be permitted to come in and defend in that suit on the ground that she was the landlord of the store company; that leave was given her and she answered; that the Orchard Case was tried, judgment was rendered for defendants, and Orchard appealed;, that in 1909 the judgment was reversed and the cause remanded for retrial; that William N. Barron had full knowledge of the facts and of the opinion (Orchard v. Wright-Dalton-Bell-Anchor Store Co., 225 Mo. 414, 125 S. W. 486, 20 Ann. Cas. 1072), which appellant asks to have adopted as a part of the petition in this case; that the cause was retried and again resulted in a judgment for defendants, which, on appeal, was again (234 Mo. 554, 175 S. W. 884) reversed and the cause remanded; that of this opinion and the facts William N. Barron was fully cognizant; that they "are hereby adopted and asked to be taken and considered as a part of this petition," etc.; that the liability of Mollie Dunky and the store company was fully settled and fixed by the decisions referred to, and that the sole issue left for determination was the amount which Orchard was entitled to recover; that, upon the return of the case after the second reversal, amendments suggested in the opinion were made and the cause was tried and a judgment was rendered for $7,477.17 and $78.60 monthly rental until restoration of possession, and for costs; that defendants in that case then appealed; that, to prevent collection of the judgment pending the appeal, the store company gave an appeal bond in the sum of $15,000, and William N. Barron, respondent in this case, was a surety thereon; that, to secure Barron and other sureties against loss by reason of their suretyship, the store company executed and delivered to a bank, "of which said Barron is a large stockholder, director and dominating spirit," its note for $10,000, with interest at 2 per cent. per annum, and to secure payment thereof delivered to the bank collateral of the value of $16,962.97, "and that said Barron thus became a paid and secured surety on said bond with a full knowledge of all the facts hereinbefore pleaded"; that the Supreme Court, in April, 1917, affirmed the judgment in the Orchard Case on the third appeal (197 S. W. 42, decided June 1, 1917; motion to transfer to bank denied July 14, 1917); that on July 18, 1917, appellant G. W. Dalton purchased the judgment and it was assigned to him; that the recovery of the judgment referred to breached the covenants of the lease Mollie Dunky had made to the store company, and that she thereby became "morally, legally and equitably bound" to pay the judgment and protect the store company, which became liable to Orchard through no fault of its own but through the misconduct and misrepresentation of Mollie Dunky, of all of which respondents in this case were advised; that while Orchard's suit was pending and undisposed of, and after the liability of Mollie Dunky had become fixed "to her knowledge and the knowledge of the defendants herein," on October 20, 1915, two days before the third trial was to begin, Mollie Dunky with intent to defraud her creditors, and particularly the plaintiffs and her codefendant, the store company, in the suit referred to, conveyed the property involved by a deed in which William N. and James J. Barron were named as grantees, for a recited consideration of $2,500; that this deed was executed by Mollie flunky and her husband in Pittsburg, Pa., on the day named and filed for record in Butler county, Mo., on October 23, 1915; that William N. and James J. Barron had full knowledge of all the facts pleaded herein and of the fraudulent intent of Mollie Dunky, and accepted the deed with knowledge and with intent to aid and abet her in defrauding her creditors in the manner stated; that William N. Barron had represented Mollie Dunky, "as attorney at certain stages of said litigation between the said Orchard and the said Knight, now Dunky, and the said store company"; that the consideration was not paid at the time of the sale, and that James J. Barron is either a fictitious person, as appellant believes, or is a nonresident of Missouri, and, in any event, paid no consideration for the deed; that, if in fact $2,500 was paid, it is grossly inadequate as a consideration for the property described in the deed and far below its market value, which is alleged to have been in excess of $10,000 at the time the deed was made; that no publicity was given the sale or effort made to obtain more than $2,500, but that Mollie Dunky sold the lot hurriedly and secretly "with the full knowledge that judgment would inevitably be rendered against her" in the Orchard Case, and so sold it with intent to defraud appellant and his assignors and the store company, and that respondents Barron were fully aware of the facts and aided and abetted Mollie Dunky in her efforts, and accepted the deed with full knowledge of the facts and "with intent to help her carry into execution her unlawful and fraudulent designs"; that Mollie Dunky was the owner of another parcel of land in Poplar Bluff which adjoined the lot involved in this case, and that at the same time, for the same reason, and with the same intent, she conveyed it to William N. Barron for a grossly inadequate price; that the two parcels were all the property Mollie Dunky had, real or personal, in the state of Missouri, and that respondents were advised of that fact and knew that she was by the two deeds stripping herself of all seizable property and rendering herself insolvent, and that she then intended immediately to leave America, which she straightway did, and ever since has resided in Switzerland; that it would be idle to issue execution, since Mollie Dunky is wholly insolvent and has no property in Missouri unless that which she fraudulently conveyed can be reached; that appellant has no adequate remedy at law.

The petition then proceeds as follows:

"Plaintiff further states that he is now, and was at all times hereinabove mentioned, president, and one of the principal stockholders, and as such one of the principal owners of the aforementioned Wright-Dalton-Bell-Anchor Store Company, and that as owner of said judgment aforesaid and for the purpose of securing from the possession of said Bank of Poplar Bluff, the collateral notes given at the time for the purpose aforesaid, he did, on, to wit, the 19th day of September, 1917, lawfully, legally and by proper legal and valid contract to that effect, attached to the margin of the record of said judgment aforesaid, release the sureties, and, among others, defendant William N. Barron, from liability on said $15,000 appeal bond, given at the time, in the manner and for the purpose aforesaid, but plaintiff says that said Barron, notwithstanding such release, induced and procured said Bank of Poplar Bluff to refuse to deliver to plaintiff said collateral as aforesaid, and to retain the same in its possession until long after the institution of this suit, and plaintiff states that if he had attempted to collect his said judgment from the defendant William N. Barron as surety as aforesaid, and the other sureties on said appeal bond, and if he had succeeded, in said attempt, then and in that event plaintiff says that said sureties, William N. Barron and others, would thereupon have confiscated said collateral deposited as aforesaid with said Bank of Poplar Bluff, and which act on their part would have resulted in great and serious financial loss to plaintiff as president, principal stockholder and Part owner of said Wright-Dalton-Bell-Anchor Store Company. Plaintiff further says that if he had caused...