Holloway v. Holloway

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Black
• Citation: 103 Mo. 274,15 S.W. 536
• Decision Date: 23 February 1891
• Parties: HOLLOWAY v. HOLLOWAY et al.

15 S.W. 536 103 Mo. 274 HOLLOWAY
v.
HOLLOWAY et al. Supreme Court of Missouri, Division No. 1. February 23, 1891.

FRAUDULENT CONVEYANCES — ANOTHER ACTION PENDING — INJUNCTION BOND.

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

15 S.W. 537

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...