Dougherty v. Harsel

• Decision Date: 28 February 1887
• Citation: 3 S.W. 583,91 Mo. 161
• Parties: DOUGHERTY v. HARSEL.
• Court: Missouri Supreme Court

3 S.W. 583

91 Mo. 161

DOUGHERTY v. HARSEL.

Supreme Court of Missouri.

February 28, 1887.

FRAUDULENT CONVEYANCES — VOLUNTARY CONVEYANCE — CONSIDERATION.

In an action by a creditor to set aside a conveyance made by the debtor to his son as voluntary, it appeared that the debtor, being at the time in affluent circumstances and out of debt, promised his son, if he would improve and make a farm on the land in controversy, he would make him a deed to it; that the son entered, cleared off the land, and planted an orchard on it, and the father, concluding to divide his estate among his children in consideration of their agreement to support himself and his wife as long as they lived, and feed his stock which he retained, deeded the land to the son, — held not a voluntary conveyance.

Appeal from circuit court, Clay county.

Simrall & Sandusky, for appellant. Allen, Fraher & Wilson, for respondent.

NORTON, C. J.

On the fourth of September, 1873, James N. Jones, with Anthony Harsel, executed and delivered to A. T. Litchfield their note for $850, payable in 90 days. On the first of August, 1879, this note was assigned to John A. Dougherty, who on the thirteenth January, 1883, instituted suit thereon in the Clay county circuit court, and on the eighth day of March, 1883, recovered judgment thereon for $1,456.32. Failing to make the money on execution, Dougherty instituted this suit in the said circuit court on the sixth day of December, 1883, against defendant, John Harsel, to set aside a certain deed made to him by Anthony Harsel, his father, on the twenty-sixth day of May, 1874, conveying to him 160 acres of land in Clay county particularly described in the petition, and praying that said land be subjected to the payment of his debt. The deed is assailed on the alleged ground that it is a voluntary conveyance made in fraud of creditors, and that at the time it was made Anthony Harsel was insolvent. Upon a trial had, the court found for defendant, and dismissed the bill, and from this action of the court plaintiff has appealed.

It appears from the record that Anthony Harsel came to Clay county in 1826, and up to 1860 had acquired a landed estate of about 760 acres, and was at that time in affluent circumstances, and out of debt; that in that year he promised the defendant, who is his son, then 20 years of age, that if he would improve and make a farm on the land in controversy it should be his, and that he would make him a deed when demanded. The evidence of Anthony Harsel, who was 81 years old at the time he testified, and the evidence of defendant and other witnesses, tended to show that, in pursuance of this promise, defendant went to work on the land in 1860, cleared two and a half or three acres, cut out a fence row, built one-quarter mile of fence, and made some rails; that during the war defendant entered the service, and did not return till 1865 or 1866; that in 1866 or 1867 defendant resumed work on the land, under the promise that the land should be his, and that his father would make him a deed when demanded; that, in one or the other of these years, he cleared three or four acres, on which he set out an orchard of 150 apple trees, 20 pear trees, and 30 peach trees; that in 186...