Henderson v. Dickey

• Decision Date: 31 March 1872
• Citation: 50 Mo. 161
• Parties: WILLIAM W. HENDERSON et al., Respondents, v. SARAH DICKEY et al., Appellants.
• Court: Missouri Supreme Court

50 Mo. 161

WILLIAM W. HENDERSON et al., Respondents,

v.SARAH DICKEY et al., Appellants.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

Glover & Shepley, for Henderson's heirs, appellants, and respondents.

(1) The misdescription in the deeds of Taylor to Elizabeth Wasson is clearly made out. Taylor intended to convey the lots in dispute. He had no claim to any other. (2) The deed of Wasson and wife to Henderson passed the title to Henderson, the prior conveyance to Taylor notwithstanding. The property belonging in fact to Wasson, and he having paid for it and had it conveyed to Taylor to defraud his creditors, Wasson's conveyance to one of those creditors, in payment of a debt, passed the title. (Gen. Stat. 1865, p. 439, §§ 2, 3.) So that, both on the ground of the mistake and the fraud, the judgment of the Circuit Court at Special Term is correct. (Howe et al. v. Waysman, 12 Mo. 169.)

On the appeal of Henderson's heirs, the only point made by appellants is that the court erred in refusing to put the plaintiffs in possession of the property decreed to them. Where title is vested in plaintiff the statute expressly gives power to award possession. This was always the practice in chancery. (Gen. Stat. 1865, p. 683, §§ 28, 29; 1 Barb. Ch. 441; Valentine v. Teller, Hopk. Ch. 422; Kershaw v. Thompson, 4 Johns. Ch. 609; 15 Ves. Ch. 180; Ludlow v. Lansing, Hopk. Ch. 231.)

Lewis & Daniel, for appellants.

I. Neither of the deeds offered, to show a conveyance from the town of Carondelet, is countersigned by the recorder of said town, as required by the special act authorizing corporation of Carondelet to sell and convey certain lots of ground, approved February 13, 1833. (Laws of Mo. 1832-3, p. 16.)

II. The court gave both a decree vesting title and a judgment for possession of real estate, which it plainly had no power to do. The courts of this State have fixed beyond peradventure the principle that a bill in equity is not a proper remedy to recover possession of real estate. (Magwire v. Tyler et al., 47 Mo. 115, and cases cited.)

III. The only consideration, if any, on which said conveyances were made was a supposed secret trust in favor of Wasson, arising out of the conveyance of the same property to Joseph D. Taylor by Bowlin and wife, for the purpose of defrauding the creditors of Wasson, which consideration this court, when this cause was before it formerly, said was no consideration sufficient to authorize a court of equity to reform these deeds. (Henderson v. Dickey, 35 Mo. 120, and cases cited.)

WAGNER, Judge, delivered the opinion of the court.

This case was formerly in this court (35 Mo. 120), and it was then reversed and remanded because the case, as then made by the proofs, did not conform to that stated in the petition, and because the court was of the opinion that no sufficient reason appeared for the interference of a court of equity. After the case was remanded, the plaintiffs amended their petition, and upon a retrial they obtained a decree vesting in them the title to the property.

The case shows that plaintiffs claim to derive title from one J. W. Wasson and wife. The land in controversy was originally owned by the town of Carondelet, and by conveyances of the town and its grantees it was finally vested in Bowlin and wife. Bowlin and wife afterwards deeded it to J. D. Taylor, and he undertook to convey it to Elizabeth Wasson, wife of J. W. Wasson, but there was a misdescription in the deed. Subsequently Wasson and wife conveyed the same property to the plaintiff's ancestor in payment of a debt; and Mrs. Taylor, who refused to join in the deed made by her husband to Mrs. Wasson, relinquished her interest to him. The defendants, before the bringing of this suit, took possession of the premises and claimed to hold them as the heirs of Taylor. The mistake in the description of the property contained in Taylor's deed was, I think, clearly and satisfactorily proved. There was no error in the court's admitting the conveyances made and executed by the town of Carondelet. The town was expressly authorized to sell and convey the lots, and the deed sufficiently conformed to the provisions of the law. (2 Terr. Laws, 393; Reilly v. Chouquette, 18 Mo. 220; Tigh v. Chouuette. 21 Mo. 233.)

The main grounds on which plaintiffs rest their case are that while Taylor nominally held the title, the real title was in Wasson, and that the conveyance of Wasson and wife transferred the whole title to plaintiff's ancestor. Wasson was the principal witness for the plaintiffs on the hearing of the cause, and he testified that he originally purchased the lots from Bowlin and wife, and had them conveyed to Taylor, his brother-in-law, till he could get out of his difficulties. He was in debt and could own no property in his own name. The understanding between Taylor and himself was that when he got out of his difficulties Taylor would convey the lots to him; that Taylor paid Bowlin nothing for the lots; that Taylor refused to convey the lots to him, but consented to convey them to his wife, who was Taylor's sister; and that the witness procured the deeds to be written, and took a justice of the peace to Taylor's, and Taylor then made the deeds, and nothing was ever paid to Taylor for them. There was other testimony corroborative of this, going to show that Taylor held the lots for Wasson, and that Wasson was in embarrassed circumstances.

If a person who is insolvent or in failing circumstances purchases property with his own money and has it conveyed to another, that conveyance is void as to subsequent purchasers of the property from him. (Howe et al. v. Waysman et al., 12 Mo. 169.) The conveyance is fraudulent, and, as to purchasers and creditors, it is as if it had not been. The property continues to be his, and if he conveys it his vendee will acquire a good title. The case of Howe v. Waysman expressly decides that point. Therefore, when Wasson purchased the property from Bowlin with his own money, and had the deed taken in the name of Taylor to shield it from his creditors, no title vested in Taylor, but the property belonged to Wasson, and his conveyance to a purchaser for a valuable...