Holloway v. Holloway

Citation103 Mo. 274,15 S.W. 536
PartiesHOLLOWAY v. HOLLOWAY et al.
Decision Date23 February 1891
CourtUnited States State Supreme Court of Missouri

1. In an action to set aside certain deeds and a deed of trust as in fraud of the creditors of defendant G., it appeared that G., being the owner of land subject to a deed of trust, conveyed a half interest therein to defendant J., who gave his note for the price, secured by deed of trust on the interest so conveyed. G. then assigned the note to his wife, S., stating as the consideration therefor the payment by S. of a debt due from him, (G.,) but the real consideration was the signing by S. of a deed of trust on her land to secure other debts of G. Subsequently J. conveyed the land to S. and took up his note. The land was afterwards purchased at a sale under an execution against G., and purchased by plaintiff, but the action to set aside the deeds was prosecuted in J.'s interest. J. testified for plaintiff that G. said his creditors "were crowding him" and he wanted to secure the land to his family; that the conveyance was merely intended to cover up his property, and that J. would never have to pay the note. The testimony of defendant G. tended to show that at the time of the conveyances he was embarrassed, but not insolvent, and that the deeds were made for the purpose of enabling him to give his creditors security, and thereby procuring an extension of time. Held, that the charge of fraud was not proven.

2. It appeared in such case that G. owned an undivided interest in the land in question, and that when plaintiff purchased at the execution sale partition proceedings were pending. Held, that the plea of another action pending was properly sustained, and therefore plaintiff was not entitled to a decree that S. held the land conveyed to her by J. as an indemnity only against any loss by reason of the deed of trust which she had given on her land to secure the debt of G.

3. Under the Missouri statute providing that an injunction bond must be in a sum sufficient "to secure the amount or other matter to be enjoined, and all damages that may be occasioned by such injunction," a party who has been enjoined from proceeding in a partition suit, to whom the rents have been awarded on dissolution of the injunction, may recover under the injunction bond the amount of such rents lost and attorney's fees occasioned by reason of the injunction; but a party as to whom no restraining order has been granted, and who is interested in the subject-matter of the suit as a prior lienor, will not be awarded attorney's fees.

Appeal from circuit court, Cass county; D. A. DE ARMOND, Judge.

Wash. Adams and J. H. Kyle, for appellant. Railey & Burney, for respondents.

BLACK, J.

The plaintiff, James M. Holloway, commenced this suit in the Cass county circuit court, making George W. Holloway and his wife, Sarah, John M. Holloway, T. P. Holloway, and the National Bank of Kansas City, defendants. By the first cause of action the plaintiff seeks to set aside two deeds and a deed of trust on the ground that they were made to defraud the creditors of defendant George W. Holloway; and by the second cause of action he seeks to enjoin certain of the defendants from selling the land under pending partition proceedings. George W. Holloway, being the owner of 340 acres of land in Cass county, conveyed 320 acres thereof to a trustee, by deed dated the 9th October, 1883, to secure a note of like date for $4,000, payable to the Missouri Trust Company in five years after the date thereof, interest payable semi-annually. On the 1st of November of the same year he and his wife, Sarah, conveyed an undivided one-half of the 320 acres to the defendant John M. Holloway, subject to the above-mentioned deed of trust. For the purchase price of this one-half interest John M. Holloway executed to George W. his note for $2,384, due in five years, and secured the same by a deed of trust on the interest so purchased. The validity of the foregoing transactions is not questioned. Afterwards, and by a deed dated the 7th April, 1884, George W. Holloway and wife conveyed the remaining one-half interest in the land to John M. Holloway, who made a deed of trust of the same date back on the same interest to secure his note for $3,200 for the purchase price. The deed was recorded on 13th June, 1884, and the deed of trust on the 25th of that month, and both were subject to the prior incumbrance of $4,000. About the date of these transactions the defendant George W. Holloway assigned the last-mentioned note to his wife. Subsequently, and on the 1st January, 1885, John M. Holloway conveyed to Sarah Holloway a one-half interest in the land in payment of his note held by her by assignment from her husband. On the 12th January, 1886, the plaintiff purchased the interest of George W. Holloway in the land for the consideration of $344 at a sheriff's sale, made under an execution issued out of the circuit court of Jackson county on a judgment in favor of Arnold and against George W. Holloway. The plaintiff thereupon commenced this suit to set aside the above-mentioned deed of date the 7th April, 1884, the deed of trust of the same date, and the subsequent deed to Sarah Holloway, alleging that they were made to hinder, delay, and defraud the creditors of George W. Holloway. The circuit court found the issues for the defendants George W. and Sarah, and plaintiff appealed.

At and prior to the date of these alleged fraudulent conveyances the defendant John M. Holloway resided upon the land in question, and cultivated the same for himself and George W., who resided at Pleasant Hill, in the same county. Though John M. is a defendant, and a party to all the alleged fraudulent transactions, he is the chief witness for the plaintiff in this case. This witness says, in substance: "George got dissatisfied, and wanted to dissolve our partnership. He was financially embarrassed, and wanted to sell out his interest in the farm. Said he would deed the other half over to me, and let me hold it for him. That his creditors were crowding him, and he wanted to secure it to his family. He said he was just doing it to cover up his property, and I would never have to pay the note. That as far as he and I were concerned the property would still be his, but as far as the outside world was concerned it would be mine. He put the property $10 an acre higher, so that it would show good faith." This evidence is corroborated by the wife of the witness. He also produced a postal-card from George W., dated the 8th January, 1884, and in which the latter says: "It is only a question of time when the bank will close me out. Am forced to take care of my family in some way. Tom has the money to pay me, with what I owe him; and if you can't buy it [the land] yourself, will sell to him, so that I can do something for myself." John also testified that he conveyed the undivided one-half of the land back to Sarah Holloway, and took up his note for $3,200, then held by her. The note was produced in evidence, and it has indorsed thereon an assignment to her from her husband "in consideration of the payment of a debt of mine amounting to $4,500." The proof also shows that George W. had the deed to John M. recorded, and paid the recorder's fee himself. The witness John M. and the plaintiff are brothers. The plaintiff says he purchased the land at the execution sale to protect his brother. It is manifest that this suit is prosecuted in the interest of John M., and that the only interest which the plaintiff has in the controversy is the amount bid by him at the sale, namely, $344. The evidence offered by the real defendant shows that at the date of the deed and deed of trust the defendant George W. Holloway owned 320 acres of land in De Kalb county, subject to a deed of trust for $3,000. He also owed the defendant bank $4,500, and some other debts besides. His property, at fair values, exceeded his debts by five or six thousand dollars, but it could not be readily converted into...

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