Davidson v. Dockery

Citation179 Mo. 687,78 S.W. 624
CourtUnited States State Supreme Court of Missouri
Decision Date23 December 1903
PartiesDAVIDSON et al. v. DOCKERY et al.<SMALL><SUP>*</SUP></SMALL>

Appeal from Circuit Court, Adair County; N. S. Shelton, Judge.

Action by Margaret Davidson and others against Thomas J. Dockery and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

W. C. Hollister, J. M. McCall, and O. D. Jones, for appellants. H. F. Milan and Reiger & Reiger, for respondents.

MARSHALL, J.

This is a bill in equity to remove an alleged cloud on the title to 248 acres of land in Adair county. The circuit court sustained the demurrers of certain of the defendants to the petition. The plaintiffs refused to plead further. Judgment was entered for the defendants, and the plaintiffs appealed.

The plaintiff Margaret Davidson is a daughter of John Howk, deceased, and the plaintiff James R. Davidson is her husband. There are about 40 defendants. The defendant Thomas J. Dockery is the administrator of the estate of said John Howk. The defendant Charles L. Lewis is the administrator of the estate of Elizabeth Howk, deceased, who was the wife of said John Howk. The other defendants are the other children and grandchildren of John and Elizabeth Howk, and their husbands or wives, and the creditors of said John Howk who have proved up their claims against his estate. The petition charges that John Howk owned the land in controversy, which was worth $35 or $40 an acre; that all of the children are of age, and living in homes of their own; that 15 or 20 years before their death said John and Elizabeth Howk became too old and feeble to care for or feed and clothe themselves, and that at their request the plaintiff Margaret Davidson took them to her house in Knox county, and cared for them, fed and clothed them, nursed them, furnished them medicines, etc., upon the express agreement that she should be paid therefor, and all which is alleged to be of the value of $3,000; that by a deed bearing date October 1, 1894, but which it is alleged was in fact signed and acknowledged 30 days later, and which was recorded on March 5, 1895, said John and Elizabeth Howk conveyed said land to their son Francis M. Howk for an alleged consideration of $8,000, but which it is averred was without consideration, and was intended to hinder, delay, and defraud the creditors of the said John Howk, and especially the plaintiff Margaret Davidson; that on November 5, 1895, said Francis M. Howk and wife conveyed said land to Elizabeth Howk, the wife of said John Howk, for a pretended consideration of $9,000, but that in reality there was no consideration therefor, and that such conveyance was made with the fraudulent intent to hinder, delay, and defraud the creditors of John Howk, and especially the plaintiff Margaret Davidson; that Elizabeth Howk died on April 19, 1895 (there is some mistake in the dates, for the deed from Francis to Elizabeth is alleged to have been made November 5, 1895, and therefore it could not be also true that Elizabeth died on April 19, 1895); that on January 16, 1896, John Howk executed a quitclaim deed to the land to the plaintiff in consideration of $2,000, in part payment for work and labor, board, clothing, nursing, and medical aid furnished by her to him and his said wife, and in consequence of this deed the plaintiff claims to be a purchaser of the land; that on March 2, 1896, "in confirmation" of said deed, and in full consideration of said board, clothing, nursing, and medical aid so furnished, said John Howk made his will, whereby he devised the sum of one dollar to each of his other children and grandchildren, and then devised the land in question to the plaintiff Margaret Davidson, and appointed her sole executrix, without bond, whereby she became the devisee of the land; that by virtue of the care, support, nursing, and medical aid furnished as aforesaid under said express promise to pay for the same the plaintiff Margaret Davidson became a creditor of the said John Howk in the sum of $3,000; that John Howk died on March 19, 1896; that the defendant Dockery, the administrator of the estate of John Howk, has published a notice that he will apply to the probate court for an order to sell the land to pay the debts of the estate of John Howk, and that the court will make such an order; that such a sale by the administrator will cast a cloud upon plaintiff's title to the land; that John Howk did not die seised of said land, but that long before his death he conveyed all right, title, and interest in the land to the plaintiff, and that she is now the innocent and bona fide owner thereof, and the probate court has no jurisdiction over it; that she (Margaret Davidson) is ready and willing to pay all the just debts of John Howk, and offers, if necessary, to bring the money into court; that defendant Lewis, the administrator of Elizabeth Howk, is now, and ever since his appointment has been, in possession of the property, and has collected about $600 in rent, which the petition asks that he be required to pay into court, to be applied by the court to the payment of the just debts of John Howk. The prayer of the petition is that the defendant Dockery, administrator of the estate of John Howk, be enjoined from selling the land; that the deeds from John and Elizabeth Howk to Francis M. Howk and from Francis M. Howk to Elizabeth Howk be canceled; that the court ascertain the debts due by the estate of John Howk; and that the land be decreed to the plaintiff Margaret Davidson, subject to the payment of said debts, or so much thereof as remains due after applying thereto the $600 in the hands of defendant Lewis, administrator of Elizabeth Howk, and for general relief.

Certain of the heirs demurred to the petition on the ground that they were not necessary parties. Other heirs demurred generally and specially, and also answered by a general denial. Other heirs answered, and denied that the will pleaded by the plaintiff was the will of John Howk, and averred that he was not of sound and disposing mind, but that the alleged will was procured by the undue influence of the plaintiff, and asked that the plaintiff be required to present it to the court for probate in solemn form, and that it be declared not to be the will of John Howk. The administrators of John and Elizabeth Howk filed separate answers, in which they admitted their appointments, but denied generally the other allegations of the petition. Two of the creditors, parties defendant, and who had proved up their claims against the estate, demurred generally and specially. The court sustained the demurrer filed by the creditors, and also the demurrer filed by certain of the heirs. The plaintiffs refused to plead further. A judgment was entered dismissing the bill, and the plaintiffs appealed.

1. The plaintiffs contend that Margaret Davidson is both a creditor and subsequent purchaser of John Howk, and is therefore entitled to have the prior conveyances of John Howk to Francis Howk and of Francis Howk to Elizabeth Howk set aside on the ground that they are fraudulent, and were made to hinder, delay, and defraud the creditors of John Howk, and especially the plaintiff Margaret Davidson. As a creditor the plaintiff is in no...

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58 cases
  • Coleman v. Hagey
    • United States
    • Missouri Supreme Court
    • 28 Junio 1913
    ...of his right to investigate or undo it, his creditors must be content to abide by the legal rights remaining in him." In Davidson v. Dockery, 179 Mo. 687, 78 S. W. 624, it is said that a mere general creditor who has not reduced his claim to judgment and does not show that he has no adequat......
  • Yellow Mfg. Acceptance Corp. v. Amer. Taxicabs, 35539.
    • United States
    • Missouri Supreme Court
    • 7 Julio 1939
    ...a corporation and for the appointment of a receiver for the corporation. Coleman v. Hagey, 252 Mo. 102, 158 S.W. 829; Davidson v. Dockery, 179 Mo. 687, 78 S.W. 624; Harkin v. Drundage, 276 U.S. 36, 48 Sup. Ct. 268, 72 L. Ed. 457; Lion Bonding & Surety Co. v. Karatz, 262 U.S. 77, 43 Sup. Ct.......
  • Daggs v. McDermott
    • United States
    • Missouri Supreme Court
    • 5 Enero 1931
    ...or equitable lien on the property" or who have commenced attachment suits against the property can maintain such suit. [Davidson v. Dockery, 179 Mo. 687, 78 S.W. 624; Crim v. Walker, 79 Mo. 335; Hume v. Wright, supra; Ready v. Smith, 170 Mo. 163, 70 S.W. 484; Bank v. Ankrum, 191 Mo. App. 25......
  • Merz v. Tower Grove Bank & Trust Co., 35769.
    • United States
    • Missouri Supreme Court
    • 7 Julio 1939
    ...116; Zoll v. Soper, 75 Mo. 460; Looney v. Bartlett, 106 Mo. App. 619, 81 S.W. 481; Rowley v. Rowley, 197 S.W. 152; Davidson v. Dockery, 179 Mo. 687, 78 S.W. 624. (2) The appellate court will not consider a theory of the case not presented to the trial court. No issue of fraud or other inequ......
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