Davidson v. Dockery
| Citation | 78 S.W. 624,179 Mo. 687 |
| Parties | DAVIDSON et al., Appellants, v. DOCKERY et al |
| Decision Date | 10 February 1904 |
| Court | Missouri Supreme Court |
Appeal from Adair Circuit Court. -- Hon. N. M. Shelton, Judge.
Affirmed.
W. C Hollister, J. M. McCall and O. D. Jones for appellants.
(1) The petition avers plaintiff is a "creditor" and states the facts out of which the indebtedness arose. It also states the facts that as plainly show that now she is also a "purchaser subsequent" under a deed confirmed by the will of her father, deceased. The petition shows she is a daughter, but bases no claim to relief on that fact as an heir. The relief asked is based on the facts of having been a creditor and by the deed and will having become a "purchaser subsequent." A child or heir can be a creditor or a purchaser. A son-in-law may purchase his father-in-law's property fraudulently conveyed to the father-in-law's wife and hold it for the mother-in-law. Mellier v. Bartlett, 106 Mo. 381. And good faith conveyances between near relations for value, even in cases where the conveyance may work a preference to the relative are valid. White v. Ingram, 110 Mo. 474; Dougherty v. Hazel, 91 Mo. 161; Kincaid v Irwin, 140 Mo. 615; Glasgow Co. v. Burns, 144 Mo. 193. Here plaintiff "changed her condition" to perform services for her parents, the value of which the father admits by his deed and will. At most, none but existing creditors could complain, and these she proposes to pay. Plaintiff was an existing creditor at the time of the voluntary conveyances of the father to the mother, and as such they were and are as to her "clearly and utterly void" (sec. 3398, R. S. 1899), without regard to the purpose or intent of the parties. White v. McPheters, 75 Mo. 286; Bohannon v. Combs, 79 Mo. 305; Snyder v. Free, 114 Mo. 360; Walsh v. Ketchem, 84 Mo. 427; Hoffman v. Nolte, 127 Mo. 120. (2) A fair reading of the petition plainly shows that in fact and law, the plaintiff is "a purchaser subsequent," and although the deeds of John Howk to his son Francis, and that of Francis and wife to Elizabeth, were put on record and plaintiff had actual notice of them, yet it is plainly and conclusively alleged, "that the grantee (Elizabeth Howk) in such conveyance, the person to be benefited by such conveyance, was a party and privy to the fraud intended." Sec. 3399, R. S. 1899; Bonney v. Taylor, 90 Mo. 63. It is expressly averred that the fraud was especially against plaintiff. Evans v. David, 98 Mo. 405. Nor is the petition multifarious. Rinehart v. Long, 95 Mo. 396. After the conveyance to Elizabeth, it being "clearly and utterly void," the title remained in John Howk, in trust for his creditors.
H. F. Millan and Reiger & Reiger for respondents.
The petition does not state facts sufficient to constitute a cause of action for the following reasons: (1) Plaintiff as a creditor could not maintain this action because her debt or claim was not reduced to a judgment. Merry v. Freemon, 44 Mo. 518; Crim v. Walker, 79 Mo. 335; Almet v. Leper, 48 Mo. 319; Reyburn v. Mitchell, 106 Mo. 365; Mullen v. Hewitt, 103 Mo. 639; Humphrey v. Milling Co., 98 Mo. 548. Is she in any better position by having taken the quitclaim deed? It does not "reduce her claim to a certainty" nor exhaust her legal remedies. Authorities above. (2) A subsequent purchaser can not sue to set aside a former deed of the same grantor as in fraud of creditors. Evans v. David, 98 Mo. 405; Roan v. Winn, 93 Mo. 511; Bonney v. Taylor, 90 Mo. 63; Shaw v. Tracy, 83 Mo. 233 (dissenting opinion); Zoll v. Soper, 75 Mo. 460; Jackman v. Robinson, 64 Mo. 289; Merry v. Freemon, 44 Mo. 518. (3) An heir or devisee can not impeach the acts of their ancestor in the disposition of his property on the ground of fraud. George v. Williamson, 26 Mo. 190; Stevenson v. Edwards, 98 Mo. 622; Thomas v. Thomas, 107 Mo. 459; Whitaker v. Whitaker, 156 Mo. 353.
This is a bill in equity to remove an alleged cloud on the title to two hundred and forty-eight 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 forty 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 thirty-five or forty dollars an acre; that all of the children are of age and living in homes of their own; that fifteen or twenty 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 three thousand dollars; that by a deed bearing date October 1, 1894, but which it is alleged was in fact signed and acknowledged thirty 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 eight thousand dollars, 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 nine thousand dollars, 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 quit-claim deed to the land to the plaintiff, in consideration of two thousand dollars, 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 three thousand dollars; 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 plaintiffs' title to the land; that John Howk did not die seized 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 six hundred dollars 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 cancelled; 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 six hundred dollars 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...
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