Growney v. Lowe
| Decision Date | 01 June 1911 |
| Citation | 138 S.W. 33,234 Mo. 689 |
| Parties | PATRICK L. GROWNEY, Appellant, v. JAMES LOWE et al |
| Court | Missouri Supreme Court |
Appeal from Nodaway Circuit Court. -- Hon. Wm. C. Ellison, Judge.
Affirmed.
Patrick L. Growney for appellant.
(1) The appellate courts will examine the evidence in an equity case fully, and will render such decree as is warranted thereby. Beene v. Schnecko, 100 Mo. 250; Miller v McCaleb, 208 Mo. 573; Gottfried v. Bray, 208 Mo. 663. There were no objections or any controversy, in the trial court, to appellant's record as a judgment creditor, and no objection or exception by respondents, to appellant's sheriff's deed, as offered in evidence and the prayer of appellant's petition only seeks to set aside and cancel the alleged fraudulent deeds held by respondents as was done in Gust v. Hoppe, 201 Mo. 302. Quitclaim deeds, with an expressed nominal consideration, are badges of fraud, on their face, when they come in conflict with claims of creditors. Ridgeway v. Holliday, 59 Mo. 455; Stoeffel v. Schroeder, 62 Mo. 150; Stievers v. Horne, 62 Mo. 475; Sharp v. Cheatham, 88 Mo. 510; Bank v. Nichols, 202 Mo. 321. A deed voluntarily made, rendering one insolvent by the act, is void as to existing creditors. Shaw v. Tracy, 83 Mo. 224; Needles v. Ford, 167 Mo. 495; Bank v. Nichols, 202 Mo. 322. And the deed must be held voluntary, where no consideration passes at the time, and the indebtedness alleged, or attempted shown, as a consideration, was not enforceable against the grantor by the grantee, either in law or in equity. (2) The law of this case may be conceded, and the real question one of fact. If the purpose of Joseph in deeding the property was to put it out of the reach of the execution that would follow the judgment he apprehended appellant would recover, then it was a fraudulent transaction on his part; and if defendant James, with knowledge of the fraudulent purpose on part of grantor, assisted in the accomplishment of that purpose, then it was a fraudulent transaction on the part of both, and the deed should be set aside. Gust v. Hoppe, 201 Mo. 298. (3) The basis of respondents' claim involves the relation of brothers and sisters, and the authorities frequently have occasion to scrutinize and comment on their conduct, when they combine, collude and confederate to assist each other in opposition to a creditor of one of them. Bank v. Fry, 216 Mo. 42. (4) But one defendant (respondent) testifies as a witness in the case, while the other two charged with the same fraud are present at the trial and remain silent. From this fraud will be presumed. Bank v. Nichols, 202 Mo. 323.
T. A. Cummins and Shinabargar, Blagg & Ellison for respondents.
(1) Joseph, being indebted to the estate of his father, John, at the time of the death of the latter, in a sum largely in excess of what would have been his share of the estate of his father, had no interest in the real estate and other property and effects owned by the deceased. Ayers v. King, 168 Mo. 244; Leitman v. Leitman, 149 Mo. 112; Trabue v. Henderson, 180 Mo. 616. (2) An heir's interest in an estate consists of his distributive or inherited share of the estate, less what he owes the estate. A judgment against such heir in favor of a general creditor cannot be paid out of his distributive share before his debts to the estate are satisfied. Duffy v. Duffy, 155 Mo. 144; Ayers v. King, 168 Mo. 244. (3) If a parent as surety pays a debt for a child, or where elder children have been educated and supported out of the parent's estate and the younger children do not derive any such benefit, such advancement should be charged against them in favor of the younger in making distribution. State ex rel. v. Stephenson, 12 Mo. 178; 4 Ency. Ev., sec. 589. (4) The indebtedness due to a father by the child, is equivalent to an advancement to the child. Upon distribution of the father's estate, the child's right of inheritance, or his right as a distributee, will not attach until his indebtedness be first paid. Ford v. O'Donnell, 40 Mo.App. 52; Duffy v. Duffy, 155 Mo. 144. (5) Nor does the Statute of Limitations run against such advancement. It remains unimpaired by lapse of time. Leitman v. Leitman, 149 Mo. 121; 2 Worn Am. Law of Admr. (2 Ed.), sec. 564. (6) There was no evidence offered by plaintiff to establish the allegations of his petition. The burden was upon appellant to show bad faith upon the part of the respondents. Trabue v. Henderson, 180 Mo. 616; Wall v. Beedy, 161 Mo. 640; Bank v. Worthington, 145 Mo. 100.
This is a suit in equity to set aside two deeds to an undivided one-sixth interest in 240 acres of land in Nodaway county, on the ground that they were without consideration, and made to hinder and delay the plaintiff in the collection of a debt that the grantor in the first deed owed to the plaintiff.
According to the petition the plaintiff in April, 1894, obtained a judgment in a justice's court for $ 48.50 against Joseph Lowe, a brother of the defendants. Joseph at the time was insolvent and nothing could be made by execution, so the judgment remained unsatisfied; in 1901 he became the owner by inheritance from his father of an undivided one-sixth of the land in question; on November 6, 1906, plaintiff began proceedings in the justice's court to revive the judgment, which proceedings went to the circuit court on appeal, where the judgment was revived March 6, 1907; execution then issued on the judgment, which was levied on Joseph's interest in the land, and at a sale by the sheriff plaintiff became the purchaser of that interest and received the sheriff's deed for the same. After the institution of the revivor proceedings, and after notice thereof had been duly served on Joseph, but before the return day of the writ, to-wit, on the 19th day of November, 1906, Joseph executed a quitclaim deed to his one-sixth interest in the land to the defendant James Lowe, his brother, the consideration expressed in the deed being one dollar, but it was without consideration; that deed was placed on record November 20, 1906, and three days thereafter James executed a quitclaim deed, which was also duly recorded, to the same interest, to his two sisters, who are also defendants; that deed was also without consideration, and both deeds were made to hinder, delay and defraud the plaintiff in the collection of his judgment. The prayer of the petition was that the deeds be cancelled. The defendants answered by general denial.
At the trial plaintiff introduced evidence to the following effect: The record showing that he began the proceedings in the justice's court to revive the judgment, November 6th, and the return day of the scire facias was November 27, 1906; also the judgment on the circuit court reviving the judgment of the justice's court; the records showing the two quitclaim deeds to defendants; the sheriff's deed to himself, showing that the land was struck off to him for the sum of ten dollars, which was the highest bid. In his own behalf plaintiff testified that at the sheriff's sale one of the attorneys for the defendants announced that Joseph had no interest in the land, and if any one should buy the land at that sale he would buy only a lawsuit. The sheriff's sale was on the 22d of June, 1907. On cross-examination of the plaintiff it came out that he had not put the sheriff's deed on record, that he had paid the sheriff only five dollars of the amount of his bid and the sheriff had withheld the deed until the rest of the money was paid, but that on the day before the trial the plaintiff had asked the sheriff to give him possession of the deed to use at the trial and the sheriff had complied with the request; we infer from the plaintiff's testimony and that of the sheriff that the transaction was not understood by them as a delivery of the deed, but that it would be returned to the sheriff after use at the trial and retained until the balance of the purchase money was paid.
On the part of defendants the testimony tended to show as follows The 240-acre farm had belonged to the father of the Lowes, he bought it in 1878 and moved on it with his family, consisting of his wife and six children, of whom Joseph was the eldest son. The father was a locomotive engineer and was engaged in that work in Pennsylvania, where he spent the most of his time until he became too old to work, then he came home where he lived until 1901, when he died intestate. During his...
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