Herrington v. Herrington

• Decision Date: 31 October 1858
• Citation: 27 Mo. 560
• Parties: HERRINGTON et al., Appellants, v. HERRINGTON et al., Respondents.
• Court: Missouri Supreme Court

27 Mo. 560

HERRINGTON et al., Appellants,

v.HERRINGTON et al., Respondents.

Supreme Court of Missouri.

October Term, 1858.

1.Where a father, being in failing circumstances, purchases land, and causes the title to be vested in a third person, in trust for his own children, with a view to defraud his creditors, there will be a resulting trust to himself for the benefit of his creditors; this interest may be seized and sold on execution under a judgment against him in favor of one of those creditors.

2.Notice by lis pendens can exist only after service of process; nor would a purchaser pendente lite be affected by such a notice if the suit, during the pendency of which he made his purchase, should be afterwards abandoned.

Appeal from Jefferson Circuit Court.

The object of this action is to obtain a decree of title to certain lands in Jefferson county.The plaintiffs are Isaac A. S. Herrington, who sues by his next friend, and his father, Isaac Herrington.The defendants are John Herrington, James A. Beal and Bazile Hiney.The facts as they appear in the finding of the facts by the court are substantially as follows: Isaac Herrington purchased the land mentioned in the petition, and caused the legal title to be vested in John Herrington, with a view to defraud his creditors, of whom James A. Beal was one.John Herrington executed a title bond by which he agreed to convey said land to the two infant children of said Isaac Herrington.One of said children has since deceased, leaving his brother and father his only heirs.Beal obtained a judgment for his debt, and caused all the interest of Isaac Herrington in said tract to be sold under an execution, and became the purchaser thereof at the sheriff's sale, and received the sheriff's deed therefor.Beal also obtained a conveyance of the legal title from John Herrington.Beal conveyed said tract of land on the 21st of January, 1855, to Thomas C. Fletcher, as trustee for Jefferson county, to secure certain indebtedness due to said county from said Beal.Said Fletcher, as trustee, sold and conveyed said land on the 16th of August, 1856, to Bazile Hiney.The court refused to grant the relief prayed on the ground, as stated in the finding, that the claim of plaintiffs was “tainted with fraud.”

Fletcher and Greene, for appellants.

Noell and Beal, for respondents.

I.The transaction was fraudulent with respect to Isaac Herrington's creditors; they are entitled to the land.(12 Mo. 169;14 Mo. 160;15 Mo. 62;16 Mo. 225;17 Mo. 209;18 Mo. 174, 299;23 Mo. 579, 588, 168;24 Mo. 282;25 Mo. 329;10 Mo. 303;5 Mo. 296.)

RICHARDSON, Judge, delivered the opinion of the court.

Before and at the time the transcript of Beal's judgment was filed in the office of the clerk of the Circuit Court, Isaac Herrington was insolvent, and the land, being held by John Herrington fraudulently for the purpose of shielding it from Isaac's creditors, was subject to Beal's execution.The unrecorded title bond, by which John Herrington agreed to convey the land at a future day to Isaac's children, could not, and did not, defeat the judgment lien, and the sheriff's deed to Beal operated to convey the beneficial interest in the land.(Rankin v. Harper, 23 Mo. 579.)The deed of John Herrington to Beal did not certainly weaken the latter's title; for, if Beal had no notice of the title bond, the deed passed the whole estate, and if he had notice, as the bond was fraudulent, he could stand on the sheriff's...