Green v. Cates

• Decision Date: 31 October 1880
• Citation: 73 Mo. 115
• Parties: GREEN v. CATES et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 115

GREEN

v.CATES et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Barry Circuit Court.--HON. W. F. GEIGER, Judge.

REVERSED.

George Hubbert for appellant.

1. That the legal title to the “Selvidge tract” was in James D. Selvidge when he and his wife conveyed it to Matilda Cates, there can be no question. Respondent's effort is to show that James D. held it in trust for his wife, and that she, consequently also the respondent as her heir, might be decreed the cestui que trust, not now, to be sure, as to that tract, but as to the “Cates tract” which was acquired by Matilda Cates from another source, and which, we submit, was not acquired by appellants with funds upon which equity could have fastened any trust for respondent or her ancestor.

2. If, for argument's sake, we conceded that James D. Selvidge held the Selvidge tract in trust for his wife, the following considerations are fatal to respondent's case: (1) An express trust can be created only by writing, and none has been shown in this case as against Matilda Cates or appellants. Wag. Stat., 655, § 3; R. S. 1855, 807, § 3. (2) To raise a resulting or constructive trust there must be no room for doubt as to the facts relied on. Forrester v. Scoville, 51 Mo. 268; Johnson v. Quarles, 46 Mo. 423; Ringo v. Richardson, 53 Mo. 385. (3) And the greatest certainty of identity is necessary in tracing trust funds. Hill on Trusts, *522, (4 Am. Ed.) 815; Buck v. Asbrook, 59 Mo. 200. (4) But here there is certainty of the non-identity, for the Cates tract (over which this contest) was not purchased with the proceeds of sale of the Selvidge tract, (claimed to have been first chargeable with the trust). Dilworth bought the Cates tract at administration sale and paid no money. But the administrator accounted as if he had received the money, and then procured conveyance to his wife. So its own purchase price was the consideration for which the Cates tract passed to appellant, Delilah Cates; and the conveyance was not void. Mitchell v. McMullen, 59 Mo. 252. Otherwise the title would yet be in the heirs of Matilda Cates, and there would be nothing in this action for respondent.

3. While it is a general rule that strangers have no concern with conveyances in fraud of creditors, in this case it is essential to respondent's case to show appellants' privity with the supposed original trustee, Mrs. Matilda Cates, and if the privity be assumed for one purpose, appellants may, just as she could have done, take the very common attitude of one in pari delictu with the orator in equity and say: (1) The conveyance of James D. Selvidge and Penelope Selvidge, the parents of the respondent, was neither in good faith nor supported by consideration. Absence of either of these elements renders a conveyance by an insolvent or embarrassed debtor fraudulent. Story Eq., §§ 353, 356, 359; Reed v. Pelletier, 28 Mo. 177. (2) And so it is if the property came by the wife and the conveyance be an attempted settlement upon her. Potter v. McDowell, 31 Mo. 62.

4. Respondent's ancestors were moved to their act of conveyance by the actual fraudulent intention to hinder the creditors of James D. Selvidge. Then: (1) Penelope C. Selvidge having freely and voluntarily joined therein, (without which, evinced by an officer's certificate thereof, the conceded conveyance to Mrs. Matilda Cates could not have been made,) she could not herself have been relieved of its consequences by equity. Hamilton v. Scull, 25 Mo. 167; Steele v. Parsons, 9 Mo. 813; Fenton v. Ham, 35 Mo. 412. (2) No more than would her husband's presence exempt her from punishment for a crime committed before him, but proven to have been done freely and of her own uncontrolled will. 1 Bishop Crim. Law, (3 Ed.) § 455. (3) And the fact of her coverture affords no exception to the rule. The Manhattan Co. v. Evertson, 6 Paige 457; Wiswall v. Hall, 3 Paige 313; Den v. Johnson, 3 Harr. (18 N. J. L.) 87; Devorse v. Snider, 60 Mo. 240.

5. A voluntary fraudulent conveyance is equally good against the grantor, his administrator and his heirs. Story Eq., § 371; 1 Am. Lead. Cas., 45, and cases cited in note; Ober v. Howard, 11 Mo. 425; Henderson v. Henderson, 13 Mo. 151; McLaughlin v. McLaughlin, 16 Mo. 242; Brown v. Finley, 18 Mo. 375; George v. Williamson, 26 Mo. 190.

6. In casting about for a trust fund and for an initial point for the tracing of its conversion into the property in question, we cannot be unmindful that: (1) A trust can be fastened only upon a legal estate through its owner, and for that purpose equity cannot enlarge the estate to make it commensurate with the supposed trust. 2 Washburn Real Prop., *204; Co. Litt. 190 b, 1st Am. from 19th Lond. Ed., note 249, § 7; Hill on Trusts, *144. (2) Appellants never bought or owned the Selvidge tract. It was bought by Pierce; but the legal title is yet in the heirs of Matilda Cates, no administrator's deed having been made. Speck v. Wohlien, 22 Mo. 310.

John W. Wellshear, Norman Gibbs and L. C. Krauthoff for respondents.

1. James D. Selvidge never paid one cent for the “Selvidge tract;” he merely bought from Fellows a land warrant and agreed to pay $100 therefor; laid it upon that land and at once assigned his certificate of entry to Fellows to secure the payment of the purchase price, taking from Fellows a bond for deed, and failing to pay, transferred his bond to Bowman, who paid in full the purchase price, and thereupon Fellows deeded the land to Bowman. If the patent for said land was issued in the name of Jas. D. Selvidge, it at once inured to the sole benefit of Bowman.

2. Penelope Selvidge bought that tract from Bowman and paid him from the money she received from her father's estate, money that had never been reduced to possession by her husband; and Bowman undertook, by deed, to convey said land to her, and but for the ignorance and mistake of the scrivener, the full legal and equitable title would have been vested in her. Bowman, under his said sale, put her into possession of said land, and she certainly thereby acquired the equitable title; and an implied or resulting trust arises in her favor which equity will enforce. 4 Kent Com., 305, 306, 307; Tiffany & Bullard on Trusts, (1 Ed.) pp. 22, 23; Loundsbury v. Purdy, 18 N. Y. 515.

3. The conveyance of the “Selvidge tract” by Penelope C. Selvidge and her husband to her mother, Matilda Cates, was not in fraud of the creditors of the husband, (James D. Selvidge,) for the tract was the wife's land, (at least in equity and they supposed legally,) and was conveyed to the wife's mother to hold for the benefit of the wife and her heir, the respondent Nancy M. The act of the married woman in trying to secure a home for herself and her child, free from the improvidence and mismanagement of the husband, will not at this day be held by a court of equity to be a fraud. The act of Penelope C. Selvidge in conveying the land to her mother in 1860, was but to secure to herself and her child what the statutes of this State now secure to every married woman, to-wit: the enjoyment by herself and her children of all she inherits from her father free from the improvidence or misfortunes of her husband.

4. The entire administration of the estate of Matilda Cates by John F. Cates, from its inception to its completion, was a fraud upon the probate court in which it was had, and carried on by the said John F. Cates with the sole object of getting back into his own or his wife's name the title to the lands which he in this case admits he conveyed to his mother in fraud of his creditors; and the wrongs which that administration wrought can only be righted by the interposition of equity. (1) If the only debt probated against the estate was a $5 note, it certainly was a great fraud in John F. Cates, acting in the double capity of creditor and administrator, to procure it to be allowed as a $500 note. (2) If it was really a $500 note, and executed as the nominal consideration for said fraudulent conveyance from John F. to Matilda Cates, still it was a fraud in him, while administrator of her estate and acting under oath to protect said estate, to cause that dishonest claim to be allowed; and in either event, equity ought to interpose.

5. The act of John F. Cates in procuring Dilworth to convey his (John F. Cates') land to Delilah, his wife, (no consideration whatever passing from her therefor,) shows a continuance of his fraudulent intent to keep his property covered. The only consideration actually passing for the administrator's deed to Dilworth was the payment of costs of administration, and these costs were paid from the moneys paid by Pierce for the “Selvidge tract;” and that the Selvidge tract was rightfully plaintiff's land was equally well known to both John F. and Delilah Cates, and hence they became chargeable as trustees. 4 Kent Com., 307; Murray v. Ballou, 1 Johns. Ch. 566; Shepherd v. McEvers, 4 Johns. Ch. 136.

6. John F. Cates being insolvent, and having with full knowledge sold plaintiff's land, and received the pay therefor, and having with the avails thereof (through the machinery of administration) purchased in the name of his wife the lands in controversy, the court below rightfully charged...