First Nat. Bank v. Wilson

• Decision Date: 02 June 1920
• Docket Number: No. 20584.,20584.
• Parties: FIRST NAT. BANK OF MONETT v. WILSON et al.
• Court: Missouri Supreme Court

222 S.W. 381

FIRST NAT. BANK OF MONETT v. WILSON et al.

No. 20584.

Supreme Court of Missouri, Division No. 1.

June 2, 1920.

Appeal from Circuit Court, Greene County; Arch A. Johnson, Judge.

Suit by the First National Bank of Monett against E. S. Wilson and another. Decree for defendants, new trial denied, and plaintiff, appeals. Reversed, with directions.

D. S. Mayhew, of Monett, for appellant.

W. Cloud, of Pierce City, and E. L. Burton, of Parsons, Kan., for respondent R. C. Wilson.

SMALL, C.

I. This is a suit to quiet title to and for possession of certain lands and lots in Barry county. It was commenced in Barry county and taken by change of venue to Greene county. The petition is in the usual general form, and concludes with the statutory prayer and for possession. Defendant E. S. Wilson made no defense, but defendant R. C. Wilson filed answer containing general denial, except that he was in possession, and claimed to be and was the owner of said real estate. The answer proceeds:

"For further answer and counterclaim, defendant states that in the year 1907 the property in controversy was the property of J. F. Wilson, who died intestate, leaving the defendants Richard C. Wilson and Edward S. Wilson his sole and only heirs; that they continued to own and possess the same until the 22d day of June, 1910, when the defendant Edward S. Wilson and Dinette Wilson, his wife, conveyed by deed, duly signed and acknowledged and recorded, all of their right, title, and interest of the said Edward S. Wilson and wife of this defendant Richard C. Wilson for a valuable consideration, which said deeds were then and there delivered, and the possession of the said real estate passed to the exclusive control of this defendant, and has been held openly, exclusively, and notoriously by him since said date as the owner.

"That afterwards, to wit, March 21, 1911, J. C. Baker and his wife and T. A. Nicholson and his wife conveyed to the defendant all right, title, and interest which they had acquired in the real estate in controversy, for a valuable consideration, which, they, the said Baker and Nicholson, had acquired by reason of a sheriff's sale, upon an execution issued by the circuit clerk of Greene county, Mo., in the case of James H. McQuary, Plaintiff, v. Missouri Land Co., of Scotland, Limited, et al., defendants, wherein the said E. S. Wilson had become security upon bond for costs, and execution was issued and levied on the interest of the said Edward S. Wilson in said real estate.

"Wherefore this defendant avers that he was the owner of an absolute title to said real estate by reason of said conveyance, and that at the time of the commencement of this suit plaintiff had no right, title, or interest in or to the real estate in controversy, and the defendant prays the court to determine, ascertain, and decree his title to the said real estate, and for all other relief."

The reply specifically denied ownership of the property by defendant R. C. Wilson; admitted that on June 22, 1910, E. S. Wilson( and wife made a deed to said R. C. Wilson purporting to convey their interest in the property to said R. C. Wilson, but alleged that at the time said deed was made said E. S. Wilson was indebted in the sum of about $7,000, of which $4,500 was due plaintiff, and that said deed was made and accepted for nominal consideration, and for the purpose of defrauding the creditors of said E. S. Wilson, including the plaintiff; that at the time said property was worth $14,000, and that ever since said conveyance said E. S. Wilson has remained in possession and exercised authority of ownership and enjoyed the rents and profits of the property; that at, or about, the same time said E. S. Wilson conveyed other property belonging to him to other persons to defraud his creditors, of which he continued in possession, etc.

"Further replying to defendant's answer, plaintiff says the purported quitclaim deed from J. C. Baker and Vesta Baker, and T. A. Nicholson and Martha Nicholson, as set forth in defendants' answer, does not state the true consideration for said quitclaim deed, and that said deed was made for a consideration, paid by the said E. S. Wilson, defendant, for the purpose of further hindering and delaying his creditors, and that all the right, title, and interest, which the said Baker and Nicholson had to said property was by virtue of a sale under an execution issued by the court of Greene county, and for which deed the said Baker and Nicholson never paid any consideration, all of which all of the defendants herein well knew. Wherefore, plaintiff prays the court to determine the title to said real estate as prayed for in its petition."

The cause was tried before the court sitting as a jury. No instructions nor declarations of law were asked or given. Rut, at the request of plaintiff, the court made the following findings of fact:

"First. That in his lifetime James 2. Wilson, deceased, was the owner of [the property in controversy]. * * * That the said James F. Wilson died seised of said property in the month of March, 1907, leaving surviving him as his only heirs Edward S. Wilson and Richard C. Wilson, and they continued to be the owners of said property until the 22d day of June, 1910; that prior to July 10, 1910, Edward S. Wilson was the owner in fee of lot 5 in block 6 of the Monett Town Company's town site of Monett, Mo.

"Second. That in June and July of 1910 the said Edward S. Wilson was largely involved, owing debts in the neighborhood of $5,500, and was surety on a bond in the case of McQuary et al. v. Missouri Land Company of Scotland et al., and about June, 1910, judgment was rendered in the Supreme Court of Missouri in said McQuary Case [230 Mo. 342, 130 S. W. 335], which rendered said Edward S. Wilson liable on said bond for costs.

"Third. That shortly after the rendition of said judgment the said Edward S. Wilson conveyed, by quitclaim deed, to the defendant, his brother, Richard C. Wilson, his one-half interest in the real estate inherited from his father; and executed a trust deed to secure the apparent sum of $1,200 to said Richard C. Wilson on the property owned by him.

"Fourth. That said real estate so conveyed and the property so mortgaged was of the value in excess of $10,000, and the amounts for which said pretended conveyances were made were $4,500 for the quitclaim deeds and $1,200 the pretended amount due under the trust deed.

"Fifth. The court finds that the above transactions were fraudulent, and made for the purpose of defrauding the creditors of the said Edward S. Wilson, one of whom was the plaintiff.

"Sixth. That thereafter a judgment was rendered in the McQuary Case against said Edward S. Wilson et al., and execution was issued at the instance of the circuit clerks of Barry and Greene counties, to collect his fees, together with the costs in the case, and there is no testimony to show that it was ordered by the opposite party to the judgment. That this execution was levied upon the real estate described in the plaintiff's petition, and a sale thereunder was had, at which the circuit clerk of Barry county and the circuit clerk of Greene county, both of whom had costs as clerks in the McQuary Case, became the purchasers of said estate in the sum of $24. That thereafter a suit was instituted by said clerks, Nicholson and Baker, to set aside the deed from Edward S. Wilson to Richard 0. Wilson.

"Seventh. The court further finds that while said suits were pending and before the date of trial, the said Richard C. Wilson purchased from said Baker and Nicholson the real estate referred to, paying therefor the sum of $___, the amount of said payment being not very clear from the testimony. The witness Baker testifying that it was $250. The court finds, however, that the purchase price was not in excess of $600, and that the quitclaim deed was executed by said Baker and Nicholson to said Richard C. Wilson.

"Eighth. The court further finds that on the ___ day of March, 1911, the plaintiff in this action recovered a judgment against the defendant, Edward S. Wilson, for $4,554, and an execution was issued upon said judgment and levied upon the property described in plaintiff's petition as the property of Edward S. Wilson, and the same was sold and bought in by the plaintiff bank on November 15, 1911, for the price and sum of $100, and this suit was instituted for the purpose of decreeing title for said real estate in plaintiff's bank under its deed above mentioned.

"Ninth. The court further finds that, after the original conveyance made in 1910 by Edward S. Wilson to R. C. Wilson, the defendant Edward S. Wilson was insolvent, and has been in such condition from that time until the present.

"Tenth. There is no evidence that convinces the court that the purchase price paid by R. C. Wilson to Baker and Nicholson was the money of his brother, Edward S. Wilson."

There was evidence tending to support the finding of facts. There was an agreed statement of facts, in addition to...