Eneberg v. Carter

• Decision Date: 18 November 1889
• Citation: 98 Mo. 647,12 S.W. 522
• Parties: ENEBERG v. CARTER et al.
• Court: Missouri Supreme Court

12 S.W. 522

98 Mo. 647

ENEBERG v. CARTER et al.

Supreme Court of Missouri.

November 18, 1889.

CONVERSION — JUDGMENT — LIEN.

Testator, by his will, declared that, after the satisfaction of certain devises and bequests, "I desire the remainder of my estate to be equally divided between my children," naming them. "I desire that my executor will dispose of all my real estate as soon as it can be done without loss to my estate." Held, that the will did not operate by its own force to convert the land into money, so as to place it beyond the lien of a judgment recovered against one of the children before the sale by the executor, which lien, by Rev. St. Mo. 1879, §§ 2354, 2730, 2731, 2767, attaches to any interest of the debtor in land, whether legal or equitable.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by John F. Eneberg against John L. Carter and others, to set aside certain conveyances. Judgment for plaintiff, and defendants appeal.

Charles W. Freeman and Karnes & Krauthoff, for appellants. James T. Clayton and Johnston & Lucas, for respondent.

SHERWOOD, J.

The clauses of the will which form the basis of the present contention read this way: "(7) After all the devises and bequests above provided for have been satisfied, I desire the remainder of my estate to be equally divided between my children Mary D. Carter, Marion Alexander, Annie R. Carter, Elizabeth C. Webb, and John L. Carter." "(9) I hereby appoint Jesse P. Alexander, of Jackson county, executor of my estate. I desire that my executor will dispose of all my real estate as soon as it can be done without loss to my estate." The testator died in 1875. On the 2d day of March, 1882, a judgment in favor of the Kansas City Lumber Company was rendered against John L. Carter for five hundred and odd dollars, on which judgment execution was issued to the sheriff on the 27th day of February, 1883, and his levy of the execution resulted on the 7th day of April, 1883, in a sale of Carter's right, title, and interest in certain lots in the City of Kansas. Plaintiff, being the purchaser, and receiving a sheriff's deed on the date last mentioned, placed the same on record. Carter, on the 5th day of January, 1883, conveyed, or attempted to convey, his interest, being an undivided one-fifth in the land in controversy, to said Alexander. The petition charges that this conveyance, as well as other mesne conveyances made and participated in by the defendants, were fraudulently made with a view to evade the collection of the judgment aforesaid; that there was no consideration for any of said conveyances; and asks that, so far as concerns Carter's undivided one-fifth interest in the land, said conveyances be set aside and for naught held. Upon hearing the testimony the court granted the prayer of the petition, and decreed accordingly; hence this appeal.

As seen from the premises, the heart of this cause is involved in the question: Had Carter, the devisee, such an interest in the land that the lien of the judgment could operate thereon? Under our statutory provisions, all interests of a debtor in land, whether legal or equitable, are bound by the lien of a judgment rendered in the same county, and consequently are subject to sale under an execution issuing upon such judgment. Rev. St. 1879, §§ 2354, 2730, 2731, 2767; Slattery v. Jones, 96 Mo. 216, 8 S. W. Rep. 554. So that it may be safely affirmed that it is a general rule — a rule almost without exception — that the interests of a defendant debtor in land are never beyond the reach of an execution. Taking this as the predicate for investigation, the inquiry arises: Do the circumstances already detailed exempt the case of the defendant Carter from the operation of the general rule? The claim is made by counsel for the...