Fulkerson v. Sappington
| Decision Date | 17 March 1891 |
| Citation | 15 S.W. 941,104 Mo. 472 |
| Parties | Fulkerson et al., Appellants, v. Sappington et al |
| Court | Missouri Supreme Court |
April 1891
Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.
This is a suit in equity by appellants against respondents, to obtain a decree of title to a tract of about ten acres of land near Marshall, in Saline county, Missouri. The plaintiffs are purchasers of the title of Barnabas Sappington under execution, against defendant, Frank Sappington, who claims by virtue of certain conveyances charged by plaintiffs to be fraudulent as against them.
From 1868 to 1874, Barnabas Sappington was the treasurer of Saline county, Missouri. Among others, Frederick Fulkerson was one of his bondsmen. The appellants are the heirs at law of Frederick Fulkerson. Frank Sappington is a brother of Barnabas Sappington, and was sheriff of Saline county in 1873 and 1874. In 1871, Barnabas Sappington purchased of John W Bryant the ten-acre tract of land in controversy in this case and another tract of nine and one-half acres adjoining it. He paid for the lands by check for $ 2,100 on Cordell & Montague, bankers in Marshall, with whom he kept his account as county treasurer. The evidence clearly shows that he had no money in said bank at the time other than county funds. He caused the title to the land in suit to be conveyed by Bryant to one James H. Eakin in September, 1871. Eakin held the title, in secret trust for Barnabas, until February, 1873 when, at the request of Barnabas, he conveyed it to E. D Montague, one of the firm of Cordell & Montague.
In the fall of 1873, it was discovered that Barnabas Sappington was a defaulter in his office of treasurer. It seems to have become generally known, as he says, he resigned because he was behind in his accounts and could not make up the amount of his shortage, and the people wanted a new treasurer. He tendered his resignation on the twenty-third day of December 1873. David Landen was appointed his successor, and the settlement of Barnabas set for hearing in January, 1874. On this final settlement it appeared he owed the county nearly $ 6,000.
On December 10, 1873, Montague and wife executed to Frank Sappington the following contract for a deed to the lands in suit:
Mary N. Montague."
Which was acknowledged on the twelfth and recorded on the thirteenth of December, 1873.
Afterwards on the sixth of March, 1879, Montague and wife made a "special warranty" deed to Frank Sappington to the said lands, and it was recorded in recorder's office in Saline county, March 7, 1879. It is this contract and deed that plaintiffs charge are fraudulent, and seek to have them declared void.
The petition in this case was filed March 17, 1887, and charges that Barnabas was county treasurer; that Frederick Fulkerson and others were his bondsmen; that he defaulted and became and was wholly insolvent; that he was indebted to the county in the sum of $ 6,000 in the fall of 1873; that being so indebted said Barnabas and Frank Sappington and E. D. Montague entered into a fraudulent combination and arrangement, whereby the land in suit was to be conveyed to Frank Sappington by Montague upon the payment of a certain $ 3,000 note that day executed to Cordell & Montague by Barney and Frank Sappington.
The petition also sets forth, that at the same time Barney secured Frank against loss as security on said note, by a deed of trust on his other place of nine and one-half acres. The petition charges this contract and subsequent deed to have been voluntary and fraudulent; made to defeat the creditors of Barney, especially Saline county. Charges that judgments were obtained on his defaults to the county; the sale of this land under said judgments and the purchase by Frederick M. Fulkerson, the ancestor of plaintiffs; that at the time of the execution of the contract the lands were vacant and unimproved. The prayer is for cancellation of deed of Frank Sappington and decree of title in the plaintiffs.
The answer admits the relations of the parties; that Barney was treasurer and that Frederick Fulkerson was surety on his bond; that he was indebted as charged in petition. Denied all fraud. Set up the purchase of Bryant, the execution of the deed to Eakin, the payment of the money by Barney, and then states that Barney sold and at his request Eakin conveyed the land to Montague; that afterwards Barnabas Sappington in November, 1873, became indebted to Cordell & Montague in the sum of $ 3,000, with Isaac Elzea as his surety; that Elzea insisted on being released; and the said Montague was not able to pay the same, and, for the purpose of securing Cordell & Montague and releasing Elzea, Barnabas executed a new note for $ 3,000, with Frank as surety; and that at this time Frank bought the land in question from Montague and it was agreed between Frank and Barney and Montague that Frank should pay $ 1,500 on the note and that Barney should release Montague from the payment to him of that amount for the land, and that upon the payment of the $ 3,000 in full Montague should make Frank a deed for the land; that Frank had paid the note and Montague on March 6, 1879, made him the deed and pleaded the statute of limitations.
Plaintiffs to the statute of limitations replied an estoppel.
Barnabas Sappington, one of the defendants, testified that he bought the land in question from John W. Bryant, in September, 1871, together with the northwest quarter of the southwest quarter of the southeast quarter of the same section, through Eakin as his agent; and it was conveyed by Bryant to Eakin, and the title remained so in Eakin until February 12, 1873, in trust for him, Barney Sappington, without any evidence, from Eakin to said Sappington, of the payment of the purchase money by said Sappington or of the trust in Eakin; that the land was paid for by the witness, Barney Sappington, at that time with money which belonged to Saline county and was in his custody as treasurer of said county, by means of a check, for $ 2,100 drawn by him, about the thirtieth of September, 1871, on the banking house of Cordell & Montague at Marshall, Missouri, where he had a large amount of county money deposited to his individual credit, which check was paid, by the bank, on the tenth of October, 1871, out of the county money so to his, Barney Sappington, credit, and charged to his account; that he had no other money or credit in the bank at the time, and that the money so paid for the land has never been paid back or made good to the county, by him; but was afterward paid by the sureties on his official bonds as treasurer on judgments recovered against them at the suit of the county.
That he bought the land from Bryant, through Eakin, and took the deed in Eakin's name, because he thought he could buy it cheaper in that way; that Eakin so held the title from September 30, 1871, till February 12, 1873, when he, at the request of the witness, conveyed it to Montague; that, prior to becoming treasurer, he was engaged in mercantile business, in Marshall, in partnership with his brother, Frank M. Sappington; that just before he became treasurer they closed out their business and exchanged their stock of goods for a tract of land on Blackwater; that his, Barney, entire interest in the stock and business, went into the land, in which he, thereby, acquired a one-third interest, which was afterwards sold under executions issued on the judgments recovered by Saline county, against him and his sureties on his official bond as treasurer; that he had no other property except the nine and one-half acres on which he lived and one-third interest in two lots in Marshall for about $ 400; which were sold under the same execution; that, after he became treasurer, he had no other income, or means of support, except his salary as treasurer; which he thought may have been as much as $ 700 per year, not more; that he had a family to support, and his expenses were quite equal to his salary.
That he deposited the county funds in Cordell & Montague's bank in his own name, to his individual credit, not as treasurer and never had an account there otherwise; that he paid for the land in question by his check for $ 2,100 on Cordell & Montague's bank, drawn against his account with the bank; and it was paid by the bank and charged to his account; that he did not know that he had any money to his credit in the bank, at the time, except that of the county; and supposed that he never had refunded or made good the money paid on that check to the county, and that it formed a part of his final deficit, at the time of his resignation; that Eakin had conveyed the land to Montague at his instance and request (which is also alleged in the answer); that...
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