Durkee v. Chambers

• Decision Date: 31 October 1874
• Citation: 57 Mo. 575
• Parties: HENRY M. DURKEE, Appellant, v. AARON K. CHAMBERS, Respondent.
• Court: Missouri Supreme Court

57 Mo. 575

HENRY M. DURKEE, Appellant,

v.AARON K. CHAMBERS, Respondent.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Scotland Circuit Court.

E. G. Pratt, J. C. Anderson & H. M. Durkee, for Appellant.

Birch & Mackey, for Respondent.

NAPTON, Judge, delivered the opinion of the court.

This proceeding was commenced in the Circuit Court of Scotland county in 1872, to subject certain lands in that county, to which defendant had the legal title, to the payment of certain claims belonging to the plaintiff.

It seems that one Allen, the father-in-law of the defendant, Chambers, lived in Callaway county, and had a note upon one Woods, for $3,250.00, dated in 1857 and secured by a mortgage on a tract of land in Scotland county. Suit was instituted on this note and mortgage in 1852, in Scotland county, and was pending in 1862, when Allen went up to Scotland county and sold the note and mortgage to his son-in-law, the defendant, who then had been living in this county for several years, though previously a citizen of Fulton in Callaway county, and residing during the years 1857, '8, '9, partly at the house of Allen.

Allen's property in Callaway county was not sufficient to pay his debts, in 1862. The suit against Woods by Allen, was, immediately after the transfer to Chambers, continued in Chamber's name, and was not finally determined until 1870 A credit of $2,000 on the note, besides some small credits indorsed on it, was claimed, and the title to a portion of the tract of land was disputed, and claimed by the heirs of Cadwell. This suit was carried on by defendant, at considerable expense, and loss of time and personal attention on his part, and was ultimately compromised or settled by the defendant's buying up the Cadwell title, and procuring a deed from the mortgagor Woods, to the entire tract.

The creditors in Callaway then assigned to the present plaintiff their claims against Allen, and upon these judgments had executions issued, and the land levied on and sold as Allen's land; and this suit is brought to set aside Chambers' title, on the ground that the purchase by him was a fraudulent contrivance on the part of Allen and Chambers to hinder, delay and defraud these creditors.

From the bill of exceptions it appears that certain issues involved by the petition and answer, were agreed on and submitted to a jury. These issues were:

1st. That on the 1st day of May, 1862, and prior and subsequent thereto, said Thomas D. Allen was largely indebted to Robert H. Damon and others, of which said indebtedness defendant, Chambers, had full notice. Plaintiff affirms, and defendant denies.

2d. That for the purpose of hindering and delaying his said creditors, the said Thomas D. Allen assigned to the said Aaron K. Chambers a certain promissory note for the sum of $3,250 dated, etc., secured by a mortgage, etc.

3rd. That the said defendant, A. K. Chambers, conspiring with said Allen to hinder, delay and defraud, and for the purpose of enabling the said Allen to hinder, delay and defraud his said creditors, took and received the said assignment and note to himself, and claimed to be the sole and exclusive owner thereof, when in truth and in fact the said Thomas D. Allen was the owner thereof.

These issues, it will be perceived, did not involve any question in regard to the assignment having been made for a valuable consideration, though the petition so claimed, and asserted the assignment to have been purely voluntary and without any consideration whatever, and the instructions of plaintiff are also based on the assumption that the assignment was not voluntary, and the evidence undoubtedly showed a valuable consideration, concerning the adequacy of which however there was a dispute and a conflict of testimony.

The instructions given for the plaintiff and defendant are only important as showing the theory of law on which the court submitted the issues to a jury.

The instructions given for the plaintiff were:

1st. “If the jury believe from the evidence that on the 7th day of May, 1862, and prior and subsequent thereto, one Thomas D. Allen was indebted to Damon, etc.; and that defendant had notice of the indebtedness, the jury will find the first issue for the plaintiff.” 2nd. “If the jury believe from the evidence, that, for the purpose of delaying and hindering his creditors, the said Thomas D. Allen assigned to the said Chambers a certain promissory note, etc., they will find the second issue for plaintiff.” 3rd. “If the jury shall believe from the evidence, that Chambers took the assignment from Allen for the purpose of enabling Allen to delay his creditors, they will find the third issue for plaintiff.” The 4th is a mere statement of what the pleadings admit. 5th. “If the jury believe that defendant Chambers conspired with Thomas D. Allen to hinder and delay his creditors, or to enable the said Allen to hinder or delay his creditors, and received to himself the note and mortgage assigned, and claimed to be the owner thereof, they will find the third issue for plaintiff. 6th “If the jury believe that Chambers paid a full consideration for the assignment from Allen, yet if the jury further believe that Chambers intended thereby to enable the said Allen to hinder, delay or defraud his creditors, they will find the third issue for plaintiff.”

Four instructions were given for defendant:

1st. “If the jury find that the defendant Chambers, did...