Jones v. Talbot

• Citation: 9 Mo. 121
• Parties: MINERVA JONES ET AL. v. THOMAS TALBOT AND MARY FOX.
• Decision Date: 31 January 1845
• Court: Missouri Supreme Court

9 Mo. 121

MINERVA JONES ET AL.

v.THOMAS TALBOT AND MARY FOX.

Supreme Court of Missouri.

January Term, 1845.

APPEAL FROM WARREN CIRCUIT COURT.

WELLS, for Appellants.

LEONARD & TODD, for Appellees. 1. The decree and sale thereunder, divested the title to the land out of Talbot, and vested it in the purchaser at that sale, and the transcript of the record of these proceedings was evidence against all the world of the fact of the proceedings, and of all the legal consequences of that fact. 1 Greenleaf's Ev. §§ 538, 539; 3 Phillips' Ev. Cowen & Hill's ed. 1821-2, and cases cited. 2. The fact offered to be proved by the plaintiff, that the deed of trust which was the foundation of the decree, was made to defraud creditors, and that the person from whose judgment the plaintiff's title was derived, was a creditor of the maker of that deed at the time it was made, does not avoid the title of the purchaser under that decree.

SCOTT, J.

This was an action of ejectment, brought by the plaintiffs in error against the defendants, to recover the tract of land in the declaration mentioned, in which the plaintiffs submitted to a non-suit, which the court, on motion for that purpose, refused to set aside, and thereupon the plaintiffs sue out this writ of error.

The plaintiffs in error, to show title in themselves, offered in evidence the record of a judgment rendered against Thomas Talbot at the suit of J. Vanbibber, in the Warren Circuit Court, on the 25th June, 1835, on which an execution issued, on the 28th day of March, 1837, by virtue of which the tract of land in dispute was sold to John Jones, the ancestor of the plaintiffs, who received a deed therefor, bearing date July 24, 1837. Thomas Talbot, the tenant in possession, formerly owned the land, and at the commencement of the suit was in the occupation of it as tenant to Mary Fox, formerly Mary Pitzer, who was made co-defendant.

The defendants in error, on their part, offered in evidence a deed of trust, executed by Thomas Talbot, to Wm. J. Talbot, on the 3rd day of April, 1832, conveying to said Wm. J. Talbot, together with other property, the tract of land in dispute, for the payment of the debts in the deed mentioned. This deed was filed for record in Montgomery county on the 4th of April, 1832. There was also offered in evidence, the record of a suit in chancery, instituted by David Hickman, on the 14th day of November, 1832, against Thomas Talbot and others, the object of which was to set aside the deed of trust above-mentioned, as being made in fraud of creditors, and to obtain satisfaction of a judgment recovered by said Hickman on the 8th day of May, 1832, in the Montgomery Circuit Court, against Thomas Talbot, for the sum of $934 46 debt, besides costs, on which execution was issued, which proved unavailing, in which suit a decree was rendered on the 11th day of June, 1835, for the sale of the trust property, under which it was accordingly sold, and Mary Fox became the purchaser of the tract of land now in controversy, for which she received a deed dated 14th October, 1835. Thomas Talbot held as tenant under Mary Fox. The plaintiffs in error objected to the introduction of the testimony offered by defendants, but the objection was overruled, to which an exception was taken. The plaintiffs then offered as rebutting testimony, to show that the deed of trust was fraudulent and void, as being made to hinder and delay creditors, amongst whom was J. Vanbibber, under whose judgment the ancestor of the plaintiffs became purchaser of the land in dispute. The court refused to let this evidence go to the jury, to which the plaintiffs excepted.

The propriety of admitting the testimony offered by the defendants, and of excluding that proposed to be given by the plaintiffs, are the questions presented for our determination. The objections of the plaintiffs in error to the admissibility of the decree in the suit of Hickman against Talbot, were, that it was res inter alios acta, they were not parties nor privies to the decree, and that therefore they were not bound by it; that a power of sale already existed in the trustee, by virtue of the deed of trust, and that the...