Henderson v. Henderson

• Decision Date: 28 February 1874
• Citation: 55 Mo. 534
• Parties: WILLIAM W. AND JAMES A. HENDERSON, Respondents, v. JAMES HENDERSON, SR., WASHINGTON A., JAMES A., AND GEORGE S. HENDERSON, Appellants.
• Court: Missouri Supreme Court

55 Mo. 534

WILLIAM W. AND JAMES A. HENDERSON, Respondents,

v.JAMES HENDERSON, SR., WASHINGTON A., JAMES A., AND GEORGE S. HENDERSON, Appellants.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Platte Circuit Court.

Thos. McCarty, Routt & Rucker, and D. C. Allen, for Appellants.

I. This action is in rem. (Wagn. Stat., 1005, § 3; Han. & St. Jo. R. R. vs. Mahoney, 42 Mo., 469-471; Doe vs. Oliver, 2 Smith's Lead. Cas., § 585; Freeman Judg., pp. 504-6 § 606.)

II. Neither acquiescence nor consent, can confer jurisdiction. (Germond vs. People, 1 Hill, 343; Dudley vs. Mayhew, 3 Com., 9; Clyde & Rose Plankroad vs. Parker, 22 Barb., 323; Freeman Judg., § 120, and authorities there cited; Bangs vs. McIntosh, 22 Barb., 591.)

III. The law requires transcripts on change of venue to be filed at or before the second term after the order. (Wagn. Stat., pp. 1356-7, §§ 7, 12.)

IV. James Henderson, Sr., had the undoubted right to prefer one creditor over another. (Cason vs. Murray, 15 Mo., 378; Drury vs. Cross, 7 Wallace, 302; Tompkins vs. Wheeler, 16 Peters, 106; Marden vs. Babcock, 2 Metc., 99; Auburn Ex. Bank vs. Fitch, 48 Barb., 344.)

V. The petition alleges the acknowledgment and record of the deed. Witness Hardwick says it was not recorded. A party cannot contradict his own pleadings. Such testimony would operate a surpise on the other party, and on that score was wrong.

VI. A copy of the record entry of the acknowledgment, was, after proof of loss, the next best evidence. (Wagn. Stat., 612, §§ 56-7; Greenl. Ev., [Ed. 1859,] p. 119, § 82, p. 124, § 86, p. 127, § 88; Commonwealth vs. Kinison, 4 Mass., 646; Waterman vs. Robinson, 5 Mass., 309; Philipson vs. Bates, 2 Mo., 116; Milan vs. Pemberton, 12 Mo., 598; Medlin vs. Platte Co., 7 Mo., 235; 1 Phillips on Evidence, 588.)

E. H. Norton, J. E. Merryman and Samuel Hardwick, for Respondents.

I. After the order, the Platte Circuit Court had jurisdiction. The statute (Wagn. Stat., 1356-7, §§ 7, 12;) is directory. (Sedg. Stat. & Const. Law, pp. 368, 372.) By appearing to the suit in that court, they waived objections to venue. (Powers vs. Browder, 13 Mo., 154; Smith vs. Elder, 3 Johns, 105; Street vs. Chapman, 29 Ind., 142; Burnham vs. Hatfield, 5 Blackf., 21; Gilstrap vs. Felts, 50 Mo., 428.)

II. And a party may recover upon parol evidence of the contents of a deed, when it is lost. (Smith vs. Phillips, 25 Mo., 557; Newman vs. Studley, 5 Mo., 291; Jackson vs. Rice, 3 Wend., 183; 3 Yates, [Penn.] 184.)

III. The testimony raises the presumption, that Henderson's conveyance was designed to defeat his creditors, and in an equity case like this, fraud may be presumed. (King vs. Moon, 42 Mo., 551.)

VORIES, Judge, delivered the opinion of the court.

This action was originally brought in the Clay Circuit Court to set aside a conveyance of certain lands described in the petition, situate in Clay county, on the ground of fraud. The cause, after the action was commenced, was taken to the Circuit Court of Platte county, by change of venue.

The charges in the petition were as follows: That on the first day of June, 1856, defendant James Henderson, was indebted to one George Henderson on a promissory note for $6,500; that on the 31st day of March, 1859, George Henderson died, and Wm. W. Henderson, one of the plaintiffs, became his administrator; that said note came into his hands as part of the assets of the estate, and that he instituted suit on the same and recovered judgment against said James Henderson on said note; that execution was issued on said judgment and levied on the land described in the petition, and sold at sheriff's sale, and plaintiffs became the purchasers. The petition further states, that on and before the 24th day of July, 1860, and at different times, said James Henderson, with intent to avoid the payment of the said debt and to defeat said Wm. W. Henderson in collecting it, attempted to dispose of said lands for that purpose; that, to accomplish that object, he conveyed said land by mortgage with power of sale to David M. Rivers, and others therein named, said mortgage being the same that was recorded in Record Book “R.” page 631, of the records of Clay County, all of which were recited to be for the purpose of securing certain debts therein described, all of which debts if real and bona fide on the part of the mortgagees, were contracted, by said James Henderson, with the fraudulent intent, to cheat, wrong and defraud said Wm. W. Henderson in collecting said debt; that said James Henderson disposed of property, much of which had been procured by notes secured by said mortgage, and placed the same and other monies and means of said James Henderson, in the hands of Geo. S., Jas. A. and Washington A. Henderson, who were the sons of James Henderson, and pursuant to said fraudulent intent and covenanting with said Washingthn A., George S. and James A. Henderson, he did procure that the land be conveyed by a pretended sale under said mortgage; and by virtue of such pretended sale, said James Henderson procured that a deed be executed by certain of said mortgagees, purporting to convey said real estate to said W. A., Geo. S. and James A. Henderson, the said sons of James Henderson, which deed was recorded in Record Book “U.” page 304; that if any monies were paid at said pretended sale, they were the monies of said James Henderson. Wherefore, plaintiffs charge that said deeds are fraudulent and void, and ask that the court will so declare, and for other proper relief, &c.

To this amended petition the appellants Washington A. Henderson, James A. Henderson and George S. Henderson, filed their separate answer, in which, after admitting that James Henderson, Sr., was their father; that he executed the mortgage dated July 24th, 1860, set out in the amended petition; that said land was sold under said mortgage, January 30th, 1861; that prior to January 30th, 1861, their father owned the lands in controversy; that the deed to them from the mortgagees of James Henderson, Sr., mentioned in the amended petition, was made, &c., and alleging that the mortgage of July 24th, 1860, and debts therein mentioned were bona fide, they denied specifically and fully all of the other allegations in the amended petition. The answer then stated that the father and co-defendant of said defendants on the 24th day of July, 1860, (the date of the mortgage named in the petition) was indebted to Joseph Thompson, S. S. Major, Wm. McIlvaine, L. W. Laville, David M. Rivers, George E. Claybrook, David Willis, Washington Huffaker, John A. Denny, Thomas M. Gozney, Martha Marsh, Thomas Suter, William Atchison, and to the Farmers' Bank in various sums of money, amounting in all to a sum of between eight and ten thousand dollars, besides interest thereon, and that Thomas Gozney, Horace Anderson, Anthony Haizel and John M. Wilkerson, were the sureties for said James Henderson, Sr.; for the payment of a part of said debts; that said debts were secured or evidenced by promissory notes, executed by said James Henderson, Sr.; that their co-defendant James Henderson, Sr., on said 24th day of June, 1860, executed the mortgage named in the petition, in order to secure said debts and to save his sureties thereon; that the mortgage was executed to a portion of the persons to whom he was so indebted, conveying to them the land in controversy with personal property therein named; that said mortgagee, contained a power in favor of the grantees therein, or any three of them, to sell the property named in the mortgage, at any time after the 1st day of January, 1861, at public sale to the highest bidder, after giving notice &c., and with the proceeds of the sale to pay first, the expenses of the trust, and next, whatever might remain unpaid upon the debts named in the mortgage, either of principal or interest, and the remainder, if any, to be paid to the mortgagor.

The answer then further states, that the said debts were not paid, and that the mortgagees on the 31st day of January, 1861, after having given the notice required, (20 days) sold the land in controversy in conformity with the provisions of the mortgage; and that the said defendants were the highest bidders at said sale for the land in controversy, and became the purchasers thereof for the sum of $2150.00, which said sum was paid and the land conveyed to them under the power in the mortgage; that they purchased the land in good faith and paid therefor without fraud.

In the separate answer of James Henderson, Sr., it was further alleged, that on and before July 24th, 1860, he was bona fide indebted to the persons, and in the amounts named in the said mortgage; that said mortgage was executed by him in good faith to secure the payment of such debts; that he executed said mortgage dated July 24th, 1860, to the mortgagees named in it; that he failed to pay the debts in said mortgage mentioned, that certain of the mortgagees named in said mortgage, acting under the power granted to them therein, sold the property real and personal, mentioned in the mortgage on the 30th day of January, 1861; that at such sale, his co-defendants became the purchasers in good faith of all the lands mentioned in the mortgage for the sum of $2,115; that the mortgagees conducting such sale, made his co-defendants a deed to said lands in due form, transferring to them all of the interest therein of him, James Henderson, Sr.; that no part of said sum of $2,115, bid and paid by his co-defendants, for said lands, was his property; and that he since the 30th of January, 1861, has not had nor has he now, any interest in said lands.

The answer of James Henderson, Sr; did not deny his indebtedness to the estate of George Henderson, or the judgment in favor of William W. Henderson, his administrator, thereon, or the execution, levy, sale and sheriff's deed to plaintiffs as is stated in the petition, but he expressly denied the allegations of fraud. To these answers, the plaintiffs filed...