Donovan v. Dunning

• Citation: 69 Mo. 436
• Parties: DONOVAN v. DUNNING et al., Appellants.
• Decision Date: 30 April 1879
• Court: United States State Supreme Court of Missouri

69 Mo. 436

DONOVAN

v.DUNNING et al., Appellants.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Buchanan Circuit Court.--HON. J. P. GRUBB, Judge.

Silas Woodson and Doniphan & Reed for appellants.

Loan, Pike, Vories, Thomas & Tyler for respondents.

NORTON, J.

This is a suit in equity, commenced in the circuit court of Buchanan county, for the purpose of setting aside certain conveyances on the ground of fraud. The petition alleges that defendant, William Dunning, was, in November, 1873, indebted to various persons, as follows: To one Riddle in the sum of $1,230; Toole $1,162; White $390; Wallingford $695; Beattie $1,139; Willis & Logan $56; the Buchanan Bank $574 and $201, and George W. Samuel $857; that said Dunning was insolvent, and, on the 12th day of November, 1873, executed and delivered to his daughter, Annie Stephens, a deed to the northwest quarter of the northeast quarter of section 28, township 56, range 36, and that this deed was made without any consideration; that, on the 11th day of March, 1874, defendant, Dunning, executed to his co-defendant, Rachael N. Grace, his daughter, a deed conveying to her the northwest quarter of section 35; also the northeast quarter of section 34; also the east half of the northeast quarter of the northwest quarter of section 34; fifteen acres out of the southwest corner of southeast quarter of section 27, all in township 56, range 36; on that the 28th of March, 1874, said Dunning executed a deed to W. Grace, conveying to him the southeast quarter of the northeast quarter of section 28, township 56, range 36; that on the 4th day of May, 1874, he executed a deed to Sarah C. Williams, conveying to her the south half of the northwest quarter of section 27, township 56, range 36; that on the 24th day of October, 1874, he executed a deed to R. N. Grace, conveying to her the north half of the southeast quarter of section 21, and the northwest quarter of the southwest quarter of section 21, township 56, range 36; that all the grantees in said deeds were the children of the said Dunning, and that the deeds were without consideration, and fraudulent and void as to creditors; that all of the debts, aforesaid, were put into judgment in January, 1875; that executions were issued on said judgments during the months of March, April and May, 1875, which were levied upon the interest of said Dunning in all said lands, and at the sale made thereof by the sheriff on the 1st day of June, 1875, the plaintiff became the purchaser.

All the defendants, except William Dunning, R. N. Grace and her husband, and William Grace, made default, and judgment was taken against them accordingly. Defendants R. N. Grace and William Grace, filed answers, denying the allegations of the petition, and claiming to have bought the respective tracts of land conveyed to them, and to have paid a full price therefor. The issue on the answer of Wm. Grace was found in his favor, and that tendered by the answer of R. N. Grace, as to one-half the land conveyed to her in March, 1874, was found for plaintiff, and the finding was also for plaintiff for the 120 acres conveyed by said Dunning, in October, 1874, to her, and judgment was according rendered, from which defendants John Grace and R. N. Grace, after appropriate motions for a new trial had been overruled, have appealed to this court. But two grounds of error are brought to our attention by the record: 1st. That the court erred in admitting evidence of the indebtedness of said William Dunning; and, 2nd. That the evidence does not justify the finding of the court.

1. EQUITY PLEADING: fraudulent conveyance.

It is urged, in support of the first alleged error, that the evidence should not have been received, because the petition is multifarious and defective in not alleging a conspiracy between the defendants to defraud the creditors of said Wm. Dunning. This objection to the admission of evidence was not well taken. The reason given in support of it, we think, is answered by the case of Tucker v. Tucker, 29 Mo. 350. The plaintiff bases his claim for relief on one general right, and in such case the bill is not demurrable, although the defendants may have separate and distinct defenses. 20 Pick. 368; 3 Iredell Eq. 611; 6 John. Ch. 156.

2. FRAUD.

When the facts, as disclosed in the record, are examined, we can find nothing in them authorizing an interference, by this court, with the decree and judgment in the case. It appears from the evidence that the defendant, Wm. Dunning, who was an old man, the owner of a large amount of real estate, and in good credit, reposed confidence in his son, J. M. Dunning, and had given him authority to sign his name to a few notes, according to the testimony of Dunning himself. This trust had been abused, and the name of the father was placed by the son on a large number of notes, as the father testifies, without authority, amounting in value to more than his entire estate, after setting off a homestead. Be this, however, as it may, when suits were brought on these notes, the father made default, and allowed judgment to go against him, and, in one instance, made a voluntary confession of judgment, thus by his refusal to answer in the first instance, and by his voluntary acknowledgment of the debt in the other, ratifying the acts of his son. As a subsequent ratification of an act unauthorized when done, is equivalent to a previous authorization of the act, the debts on which these judgments were obtained, and under which the property in question was sold, are to be regarded as the debts of William Dunning, for the payment of which his property was justly liable. Several of these debts were contracted in 1870, and prior to 1873. One of them originated in 1864. The evidence shows that when the payment of these debts was sought to be enforced, all of the real estate of defendant had passed by virtue of various deeds by him executed to his children, leaving nothing out of which anything could be made on execution. As to the parties not answering, the deeds were confessedly voluntary and fraudulent as to creditors.

In reference to the deed executed in March, 1874, to R. N. Grace, the claim made by defendant that it was...