Deberry v. Wheeler

• Decision Date: 30 March 1895
• Parties: DeBerry, Appellant, v. Wheeler et al
• Court: Missouri Supreme Court

30 S.W. 338

128 Mo. 84

DeBerry, Appellant, v. Wheeler et al

Supreme Court of Missouri, First Division

March 30, 1895

Appeal from Clinton Circuit Court. -- Hon. Wm. S. Herndon, Judge.

Affirmed.

Joel Funkhouser for appellant.

(1) Both conveyances of which the plaintiff complains, being voluntary and made without consideration, are void as to creditors. R. S. 1889, sec. 5170; Patton v. Bragg, 113 Mo. 595; Snyder v. Free, 114 Mo. 360; Sloan v. Torry, 78 Mo. 623. (2) A wife having permitted her husband to hold himself out to the world as the owner of the land in question and thereby obtain business credit and standing, will not be permitted to claim the land as her own when the creditors of her husband sue him for their debt. Riley v. Vaughan, 116 Mo. 169; Minnich v Shaffer, 34 N.E. 987; Besson v. Eveland, 26 N.J.Eq. 471; Bank v. Hamilton, 34 N.J.Eq. 162; Humes v. Scruggs, 94 U.S. 23; Sexton v Wheaton, 8 Wheat. 229; Wendell v. Van Rensselear, 1 Johns. Ch. 353.

Hiram Smith and Wm. Henry for respondents.

(1) No one has a right as a creditor to bring a suit in equity to set aside for fraud a conveyance made by his debtor, until he has reduced his claim to a judgment; and, excepting where from insolvency, an execution would be unavailing, all legal remedies must first be exhausted by having execution issued, and a return of nulla bona before bringing the suit. Mullin v. Hewitt, 103 Mo. 650; Humphreys v. Milling Co., 98 Mo. 548; Thias v. Siener, 103 Mo. 323; Bump on Fraudulent Conveyances [3 Ed.], 537. (2) All presumptions are in favor of the judgment of the trial court, and upon questions of fact. Even in equity cases, the appellate court will defer somewhat to the finding of the lower court (Ryan v. Gilliam, 75 Mo. 132); and when fraud is the fact in issue, it will not be presumed to exist, when all the facts as well consist with honesty and fair dealing as with an intention to defraud. Rumbolds v. Parr, 51 Mo. 592; Dallam v. Renshaw, 26 Mo. 533; Ames v. Gilmore, 59 Mo. 537; Chapman v. McDuvalt, 77 Mo. 44; Henderson v. Henderson, 55 Mo. 555. (3) At the time it is claimed plaintiff's equities accrued, the defendant, Caroline T. Wheeler, had the equitable title to the land in controversy, with the promise of the legal estate to which she was entitled, while plaintiff had no promise of any security or lien on the land; hence his equity, if equal to, could not rise above, that of said defendant; and she, having acquired the legal title, in the absence of superior equity, such title will not be disturbed in equity; for the maxim is, that where there is equal equity the law must prevail. Story's Equity Jurisprudence, sec. 64c; Snell's Principles in Equity, 23. (4) And it is not the policy of our law to favor the taking of the property of married women, who labor under disadvantages and disabilities, either directly through its use by the husband, or indirectly by his creating debts and thus inviting his creditors to take it as his to discharge his liabilities. R. S. 1889, sec. 6869; Hart v. Leete, 104 Mo. 315, and cases there cited. (5) The land in controversy into which the money and means of defendant Caroline T. Wheeler went, became and remained her separate property by virtue of the terms of the statute, and the bare, naked legal title put in her husband was held by him in trust for her, and she had the right to have it vested in her, as she did, by the deeds sought to be set aside; and there is no rule of estoppel that can be applied justifying a court of equity to divest such title. Scrutchfield v. Sauter, 119 Mo. 623; Blodgett v. Perry, 97 Mo. 292. (6) There is a failure in the brief of appellant to distinctly and separately, or in any manner allege the errors committed by the inferior court as required by practice and the rules of this court. See rule 15.

OPINION

Macfarlane, J.

This is an action in the nature of a creditor's bill, the object of which is to reach certain real estate, the title of which was in defendant Caroline T. Wheeler, wife of defendant William H. Wheeler, and subject the same to the payment of a judgment in favor of plaintiff and against the said William H. Wheeler and others.

The evidence in brief disclosed these facts: Defendants, the said William H. and Caroline T. Wheeler, were married about the year 1884. The wife was then possessed of real and personal property. The husband owned nothing. About the twelfth of March, 1888, the said defendants sold a tract of land belonging to the wife, and with proceeds of the sale bought the land in controversy, the title to which, without the knowledge of either, and through mistake or inadvertence, was taken in the name of the husband. The fact that the title was so taken first came to the knowledge of the wife five or six months after the date of the deed. She at the time objected and insisted on a correction. There was at the time a deed of trust on the land, held by eastern capitalists, and it was agreed between the husband and wife that as soon as that was satisfied the correction should be made.

On August 20, 1890, one T. R. Sheldon, as principal, and Sarah E. Sheldon and defendant William H. Wheeler, as sureties, executed and delivered to plaintiff a note for $ 317.50. Before taking the note plaintiff was informed that defendant Wm. H. Wheeler was the owner of this land, and was good for the amount of the note, and upon this information he loaned the money. Plaintiff demanded payment of said defendant on the fourteenth day of February, 1893.

On the fifteenth or sixteenth of the same month, in order to place the title to said land in the wife, she and her husband executed a deed to defendant, Oliver Adams, and, on the same day, Oliver Adams and wife by proper deed conveyed the land to defendant Caroline T. Wheeler.

Plaintiff afterwards, in May, 1893, obtained a judgment on said note, in the circuit court of Clinton county, for $ 405.75 against all the makers of said note. Upon this judgment execution was issued and returned nulla bona.

This suit was then commenced to set aside the conveyances from Wheeler and wife to Adams, and from Adams and wife to said defendant Caroline T. Wheeler, as obstructions to enforcement of the judgment under execution. The court found for defendant and dismissed plaintiff's petition, and he appealed.

I. This record shows no intended fraud on the part of either William H. Wheeler or his wife, in transferring the title of the property from the former to the latter. The evidence leaves no doubt whatever that the property was paid for by money belonging to the wife, and that the purchase was made by her...