Dodd v. LeVy

• Decision Date: 22 March 1881
• Citation: 10 Mo.App. 121
• Parties: DODD, BROWN & COMPANY, Respondent, v. CAROLINE LEVY ET AL., Appellants.
• Court: Missouri Court of Appeals

10 Mo.App. 121

DODD, BROWN & COMPANY, Respondent,

v.CAROLINE LEVY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 22, 1881.

Where the creditor's demand is purely legal and has not been reduced to a judgment, the fact of the debtor's non-residence will not give jurisdiction to set aside a fraudulent conveyance of the non-resident's property within the jurisdiction.

APPEAL from the St. Louis Circuit Court, WICKHAM, J.

Reversed and dismissed.

HENDERSON & SHIELDS, for the appellants: A creditor cannot set aside a conveyance made by his debtor, until he has obtained judgment and exhausted the usual means of enforcing collection at law.-- Wiggins v. Strong, 2 Johns. Ch. 144; Martin v. Michael, 23 Mo. 95; Merry v. Fremon, 44 Mo. 518; Turner v. Adams, 46 Mo. 95; Alnutt v. Leper, 48 Mo. 319; Pendleton v. Perkins, 49 Mo. 565; Kent v. Curtis, 4 Mo. App. 121; Tennent v. Battea, 18 Kan. 324; Fleming v. Grafton, 54 Miss. 79; Morgan v. Boyne, 7 Neb. 429; Public Works v. Columbia College, 17 Wall. 521.

MYERS & ARNSTEIN, for the respondent: The fraudulent conveyance and the impossibility of obtaining a personal judgment against the debtor justify resort to a court of equity in the first instance.-- Merry v. Fremon, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319; Kent v. Curtis, 4 Mo. App. 121; Lackland v. Smith, 5 Mo. App. 153; Scott v. McMillen, 1 Litt. 302; Kippen v. Glancey, 2 Blackf. 356; Peay v. Morrison, 10 Gratt. 149; Brittain v. Quiet, 1 Jones Eq. 328; Pope v. Solomon, 36 Ga. 541.

THOMPSON, J., delivered the opinion of the court.

This is a suit in equity to set aside an alleged fraudulent conveyance of real estate situated in St. Louis, Missouri. The plaintiffs have not reduced their demand to a judgment at law; but it is evidenced by certain promissory notes of the defendant Silvain Levy, who is a resident of the State of Illinois. The answer of this defendant was a general denial, which, of course, includes a denial of the existence of the debt. At the commencement of the trial, the defendant's counsel objected to the introduction of any testimony, for the reason, among others, that there was no averment in the plaintiff's petition that they had reduced their demand to a judgment at law. The learned judge who heard the cause overruled this objection, and the cause was heard at great length on its merits. It will be unnecessary for us to consider any other question in the case, for, upon this ruling alone, the judgment must be reversed and the suit dismissed.

It is elementary doctrine that a court of equity will not entertain a creditor's bill to set aside a fraudulent conveyance unless the creditor has either prosecuted his demand to a judgment at law, or shows that it is impossible for him to do so. We shall not go into the learning on this subject, of which there is a great accumulation, reaching back more than a hundred years, because the subject has been thoroughly considered by the Supreme Court of this State ( Martin v. Michael, 23 Mo. 50; Merry v. Fremon, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319; Turner v. Adams, 46 Mo. 95; Pendleton v. Perkins, 49 Mo. 565); and also by this court ( Luthy v. Woods, 1 Mo. App. 167; Kent v. Curtis, 4 Mo. App. 121). It is true that the lien of a judgment is not necessary, though that is an usual incident of a judgment. Merry v. Fremon, 44 Mo. 518; Alnutt v. Leper, 48 Mo. 319. Neither is it always necessary that an execution should be sued out, and that it should be returned nulla bona. Turner v. Adams, 46 Mo. 95.

But no decision in this State goes to the length of holding that, where the demand of the creditor is purely a legal demand, and the debtor has visible property within the jurisdiction, which may be reached by attachment, the mere fact that he is a non-resident will authorize the bringing of a creditor's bill in the first instance. The language of Judge Bakewell in Lackland v. Smith, 5 Mo. App. 153, cannot be invoked in support of such a doctrine, because, in that case, the creditor had recovered a judgment in a suit by attachment upon the notes of the debtor, held by him, and had proceeded in that suit as far as he could, having even made an ineffectual attempt to garnish the trustee who held the fund against which he proceeded; and the Supreme Court had held, with reference to the same subject-matter, that the proper remedy of the judgment creditor was in equity ( McIlvaine v. Smith, 42 Mo. 45), and that the property being encumbered with a trust, was not subject to garnishment. Lackland v. Garesché, 56 Mo. 267. Neither can Pendleton v. Perkins, 49 Mo. 565, be invoked in support of such a doctrine; for there, although the debtor was a non-resident, yet the fund sought to be reached was in the treasury of the city of St. Louis, and was, by statute, exempt from garnishment. In that case, after reviewing a number of cases, Judge Bliss states the conclusion of the court to be that, “when the debtor has absconded, and there is no statutory proceeding by which his property can be reached, a creditor's bill will lie in the first instance, and from the necessity of the case.” The case of Luthy v. Woods, 1 Mo. App. 167, was like the preceding, except that the debtors were residents of the State,...