Kinealy v. MacKlin

• Citation: 2 Mo.App. 241
• Parties: MICHAEL KINEALY, Appellant, v. PATRICK MACKLIN et al., Respondents.
• Decision Date: 16 May 1876
• Court: Court of Appeal of Missouri (US)

2 Mo.App. 241

MICHAEL KINEALY, Appellant,

v.PATRICK MACKLIN et al., Respondents.

St. Louis Court of Appeals, Missouri.

May 16, 1876.

The interest of an execution debtor, in real estate which he has attempted fraudulently to convey, is salable under execution, and, where the deed is found fraudulent and void, the plaintiff in a proceeding to set the same aside and vest title in him, as purchaser at execution sale, is entitled, on proof of these facts, to an absolute decree vesting defendant's title to the premises in him.

APPEAL from St. Louis Circuit Court.

Order of general term, remanding cause to special term, reversed, and the order reversing the action of special term affirmed, and final judgment rendered.

Dryden & Dryden and M. Kenealy, for appellant, cited: Hurck v. Erskine, 50 Mo. 119, 2d par.; State v. Newkirk, 49 Mo. 472; Gale v. Grimes, 9 Ind. 143; Carney v. Emmons et al., 9 Wis. 118; Beebe v. Bank of New York, 1 Johns. 529; Ryland v. Callison, 54 Mo. 514; Herrington v. Herrington, 27 Mo. 560; Pepper v. Carter, 11 Mo. 540; Eddy v. Baldwin, 23 Mo. 588; Allen v. Berry, 50 Mo. 90; Ames v. Gilmore, 59 Mo. 538 (syllabus), 550; Howe v. Colby, 19 Wis. 583.

Davis, Thoroughman & Warren, for respondents, cited: Hurck v. Erskine, 50 Mo. 119; McKey v. Underwood, 47 Mo. 187.

BAKEWELL, J., delivered the opinion of the court.

This action is brought by appellant, as purchaser at an execution sale, to set aside a conveyance of the property purchased, made by defendant Patrick Macklin, the execution debtor, to Francis L. Haydell, as trustee for the sole and separate use of defendant Ann Macklin, the wife of defendant Patrick Macklin.

The petitioner alleges that William B. Ferguson obtained judgment against defendant Patrick Macklin on a promissory note of which he was maker; execution was levied on certain real estate owned by Patrick Macklin, part of which was purchased, at the sale under the execution, by plaintiff; that, after suit and before judgment, defendant Patrick conveyed all his property, including that afterwards purchased by plaintiff at sheriff's sale, to defendant Haydell, in trust for defendant Ann Macklin, his wife, and with intent to hinder, delay, and defraud Ferguson and other creditors of defendant Patrick. The petitioner sets out the sheriff's deed, and prays to have the deed of Macklin to Haydell, trustee, declared void, and also prays for possession of the property and for an account.

The answer denies the allegations of the petition, and says that the property in suit was purchased with money the separate estate of defendant Ann, and that Ferguson knew this when the note sued on was given.

The new matter in the answer is denied in the replication.

On the trial, plaintiff introduced evidence tending to prove all the allegations of the bill.

The defendants introduced evidence that Patrick and Ann Macklin were married in 1856; that Ann had then some money, the fruits of her earnings and savings; that she continued to earn money after her marriage, and received some from her father in Canada; that after her marriage, and in the first year, she bought a lot of ground, in her own name, with her own money, and built a house on it with her money; that in 1859 she sold this property, and bought with part of her proceeds the land in controversy and other adjacent property, but that the deeds were, without her knowledge, made to her husband; that she first discovered this fact in 1862; that in 1859 she was keeping a grocery on Christy avenue, and made money in the business, and proceeded to erect improvements on this property with her own money and earnings; that her husband, except when in the army, lived with her, but was sickly, and earned nothing; that when Macklin signed the note sued on by Ferguson he told Ferguson that he was not responsible, pecuniarily, and that all the property in his name belonged to his wife.

The testimony of Patrick and Ann Macklin was, in many important particulars, contradicted by their own depositions previously taken in the cause. Receipts were introduced for rent of portions of the property, given by Patrick Macklin, in his own name; there was evidence that he kept the store for many years himself, his wife helping him; that he leased it, and sold the stock to one Meise; that Mrs. Macklin never made claim to the store or the rents; that Macklin, on two different occasions, swore that he himself owned the property-- once in a suit in the Circuit Court, in which he was plaintiff, wherein he swore, in the presence and hearing of his wife, that he owned the property in question, and the grocery and the stock in it; that his wife heard this testimony, and was very desirous to corroborate it, but was objected to as incompetent; and that again, in a suit before Justice Powers, he swore to the same facts.

The record is extremely voluminous. The testimony of Macklin and wife, to the case set up in their answer, was contradicted, and the evidence is conflicting. The cause being submitted, the court found all the issues for the plaintiff, and, having looked through this mass of testimony, we see no reason to disturb this finding.

The court made the following interlocutory decree: “Now, at this day, come the parties, by their respective attorneys, and, no jury being required, the cause is submitted to the court upon the pleadings and proof adduced; and the court, having heard and considered the same, and being fully advised in the premises, finds the issues herein for the plaintiff. It is therefore ordered that an interlocutory decree be entered herein for plaintiff; and the court decrees that the deed of Patrick Macklin and Ann Macklin, his wife, to Francis L. Haydell, in trust for the use and benefit of said Ann Macklin, dated May 13, 1873, recorded in the recorder's office of the county of St. Louis, in the State of Missouri, on pages 121, 122, of book 475,...