Guinan v. Donnell

• Decision Date: 22 February 1907
• Citation: 98 S.W. 478,201 Mo. 173
• Parties: PETER GUINAN, Appellant, v. M. S.C. DONNELL et al
• Court: Missouri Supreme Court

98 S.W. 478

201 Mo. 173

PETER GUINAN, Appellant, v. M. S.C. DONNELL et al

Supreme Court of Missouri

February 22, 1907 ^[*]

Appeal from Johnson Circuit Court. -- Hon. Wm. L. Jarrott, Judge.

Affirmed.

William C. Forsee and Samuel P. Forsee for appellant.

(1) (a) The deeds were purely voluntary. The taking of notes for the entire consideration is an almost conclusive badge of fraud as "bona fide sales of real estate are never made in such manner." Evans v. Bales, 168 Mo. 681; State to use v. O'Neil, 151 Mo. 84; Patten v. Casey, 57 Mo. 118; Bohannon v. Combs, 79 Mo 305; Potter v. McDonnell, 31 Mo. 62; White v McPheeters, 75 Mo. 286. (b) The lands conveyed to the son were the only unencumbered lands the debtor owned. A conveyance under such circumstances is presumptively fraudulent. Snyder v. Free, 114 Mo. 372. "A voluntary deed to a considerable portion of his property by an embarrassed debtor unable to pay his debts as they mature and who is being pressed for payments he cannot meet, is fraudulent as to existing creditors, regardless of the intent with which it was made." Sloan v. Torry, 78 Mo 623; Shaw v. Tracy, 83 Mo. 224; Lionberger v. Baker, 88 Mo. 447; Society v. Branch, 120 Mo. 226; Hurley v. Taylor, 78 Mo. 238; Walsh v. Ketcham, 84 Mo. 427; Frank v. Caruthers, 108 Mo. 569. (2) Unquestionably Mrs. Wagner could have enforced her judgment for $ 2,357.75 for balance due her on her loan by a levy upon and sale of the land in controversy. Guinan, by his purchase thereof, acquired all the rights she had. Sec. 3745, R. S. 1899; Lionberger v. Baker, 14 Mo.App. 353, 88 Mo. 447; Burns v. Bangert, 16 Mo.App. 22; Wilson v. Railroad, 120 Mo. 45; State ex rel. v. Hoshaw, 98 Mo. 358; Bradley v. Heffernan, 156 Mo. 600; Burgess v. Cave, 52 Mo. 43; Rinehart v. Long, 95 Mo. 396. The finding of facts shows that "Mr. Guinan bought these judgments from Mrs. Wagner, and they were assigned to him March 18, 1900." He had been a surety on the $ 500 bond, but he had no connection whatever with the judgment for $ 2,357.75 under which the lands were sold. He was neither an agent nor an attorney of or for Donnell; he owed him no duty; he did not hold himself out in the purchase of the judgment or of the lands as being an agent or friend of Donnell, nor ask or obtain any deduction on account of such claim. He purchased the judgment in proper person, and not through another. Under these circumstances, it matters not how proper or improper may have been the conduct of any other person, his right to purchase and to enforce the judgment was unquestionable. Learned v. Haley, 34 Cal. 608; Weill v. Reiss, 167 Mo. 133; Smith v. Tyler, 57 Mo.App. 673; Flynn v. Neosho, 114 Mo. 567. Defendants' claim that Guinan purchased "with notice," in "bad faith," etc., is based upon a misconception. The question of "notice," good or bad "faith," etc., only arises where there is some defect in the title or the position of the seller. Weill v. Reiss, 167 Mo. 133. The purchase of the judgment by Guinan being an act within his legal and equitable rights, it is immaterial what his motives were. Bank v. Brown, 165 Mo. 38; Sammons v. O'Neil, 60 Mo.App. 540; Cooley on Torts, 688, 830; Iron Co. v. Uhler, 75 Pa. St. 467; Bancroft v. Tayntor, 68 Vt. 219. The fact that Guinan employed Forsee to "collect these judgments," and that under that contract it might become possible for Forsee to obtain an interest in the Donnell lands, is not the crux of this controversy, nor in any sense a vital or even a material point. Smith v. Boyd, 162 Mo. 157; Hyam's Adm. v. Herndon, 36 La. Ann. 879; Lipscomb v. Adams, 91 S.W. 1046. The question here involved is not whether Mr. Forsee could have bought the lands, but, rather, whether Guinan was incapacitated to buy the judgment, and whether in fact he did buy it. The lands figure in the transaction merely as an incident. If Donnell had paid the debt, even after execution had issued, the lands would not have been sold. The whole point of inquiry is as to the right of Guinan to buy the judgment. The judgment itself conferred no right upon either Guinan or Forsee to the lands, nor any interest therein. Indeed, the contract between Forsee and Guinan vested in Forsee no interest in the judgment. Jordan v. Davis, 172 Mo. 599; Sawles v. Bank, 130 F. 1009; Bradley v. Heffernan, 156 Mo. 660; Rinehart v. Long, 95 Mo. 396; Hendrix v. Evans, 94 N.W. 853; 57 Cent. Law J. 298. (3) There is a line of cases holding that an attorney who has been consulted about a title to land, and thereby ascertains the existence of an outstanding, or adverse, or paramount title, cannot purchase such adverse, outstanding or paramount title and hold it to the injury of his client, provided that the client promptly elects to treat the attorney as his trustee, and refunds what the attorney has expended, etc. Ward v. Brown, 87 Mo. 468; Davis v. Kline, 96 Mo. 401; Eoff v. Irvine, 108 Mo. 378; Wilber v. Robinson, 29 Mo.App. 157. This line of cases is much relied upon by respondents. But the principle is inapplicable, because no attorney is shown by this record to have bought any outstanding, adverse or paramount title. What occurred here was the purchase, by one who had a right to buy, of a judgment against the debtor, under which judgment the debtor's own title was sold, and purchased by the judgment creditor. Ward v. Brown, 87 Mo. 468. Assuming, for argument, that Guinan by his purchase of the judgment occupied such a position as entitled Donnell to elect to hold him as trustee, still, is it possible that Donnell could sit supinely by without paying or offering to pay any part of the amount Guinan paid for the judgment until after a sale occurred, and then defeat the sale? Stewart v. Perkins, 110 Mo. 670. (4) An attorney may buy a judgment against his former client under circumstances such as these. The authority of an attorney, especially where he represents the defendant, ceases with the judgment. Without a new retainer or fresh authority he can take no further step in the case. Hillegrass v. Bender, 78 Ind. 225; Richardson v. Talbot, 5 Ky. 382; Adams v. Bank, 23 How. Pr. 45; Graves v. Hawley, 50 F. 319; Brown v. Arnold, 127 F. 387. The foregoing is unquestionably true where, as here, the defendant instructs his attorney "to make no further defense," and to allow a judgment to go by default. A judgment is not a litigious claim. All the matters in controversy are determined by and merged in a money judgment. Warren v. Payne, 3 Barb. Ch. 630; Marshall v. McRae, 2 La. Ann. 79; Micken v. Perrin, 18 How. (U.S.) 310; Denton v. Wilcox, 2 La. Ann. 60; Taylor v. Barker, 30 S.C. 248; Austin v. Chambers, 6 Clark & Fin. 1; Brotherson v. Consalus, 26 How. Pr. 215; Devinney v. Norris, 8 Watts 314; Taylor v. Boardman, 24 Mich. 287; Weeks on Attorneys, sec. 268, note. "Third persons cannot set up the right of the client to treat the attorney as a trustee." Estes v. Boothe, 20 Ark. 583; Leach v. Fowler, 22 Ark. 143; Wade v. Pettibone, 11 Ohio 59; Atwood v. Mansfield, 59 Ill. 496; Kay v. Whittaker, 44 N.Y. 577; Giddings v. Eastman, 5 Paige 561. (5) "The sheriff notified Donnell of the levy and requested him in writing to designate and choose his homestead. Donnell did not comply with this request. The sheriff selected appraisers who set off a homestead to Donnell out of the real estate which he did not own and in which he had no interest. Mr. Forsee, who was acting as the attorney for Mr. Guinan, and under whose directions the sheriff was acting, knew that Donnell did not own or claim any portion of the real estate set apart to him as a homestead. A homestead had formerly been set apart to Donnell out of the real estate he did own. (When execution was issued on the judgment in favor of the bank.) This fact was well known to Mr. Forsee when, as Guinan's attorney, he caused this same land to be sold under the Wagner judgment. The sheriff duly advertised the real estate in controversy. The sale was made May 19, 1900. Donnell was present, had a friend bid on the property, and made no public objection to the sale." However, assuming that he was entitled to a homestead, we submit, 1. That one was set off to him in strict compliance with every requirement of the statutes; and, 2. If he was dissatisfied with the action of the sheriff in this particular he should have filed his objections thereto in the Clay Circuit Court, whence the execution issued, and not having done so, he waived any objection to such action. St. Louis Bldg. Assn. v. Howard, 150 Mo. 445; Barton v. Walker, 165 Mo. 30; Rouse v. Caton, 168 Mo. 288; Stanley v. Baker, 75 Mo. 60; Feurt v. Caster, 73 S.W. 576; Freeman on Ex., sec. 250; Macke v. Byrd, 131 Mo. 682. It does not follow that, because a homestead had been set aside to Donnell under levies prior to Guinan's, the land so set aside could not under any circumstances be again appraised and reached. Beckner v. Rule, 91 Mo. 62; Freeman on Ex., sec. 250. "The appraisement or allotment made in proceedings to subject the homestead to execution is binding on all parties thereto, unless assailed or vacated in due time in the court wherein the proceedings took place. Neither the creditor nor the debtor can, by any collateral attack, avoid such allotment or appraisement or the sales made under execution by virtue thereof." Freeman on Ex., sec. 250; Meyer v. Nickerson, 101 Mo. 184; Lallement v. Detert, 96 Mo. 182; Creath v. Dale, 69 Mo. 41; Meyer v. Nickerson, 100 Mo. 599; Schaeffer v. Beldsmeyer, 9 Mo.App. 438; Straat v. Rinkle, 16 Mo.App. 115; Thompson on Homesteads, sec. 667; Barney v. Leeds, 54 N.H. 142; Fletcher v. Bank, 37 N.H. 369; Thrasher v. Betts, 53 Ga. 407; Spoon v. Reed, 78 N.C. 245; Guntley v. Staed, 77 Mo.App. 164; Garrett v. Wagner, 125 Mo. 450; Hawland v. Railroad, 134 Mo. 474. (6) The price paid...