Kinealy v. Macklin

• Decision Date: 30 April 1886
• Citation: 89 Mo. 433
• Parties: KINEALY v. MACKLIN et al.¹
• Court: Missouri Supreme Court

89 Mo. 433

KINEALY

v.MACKLIN et al.¹

Supreme Court of Missouri.

April Term, 1886.

Error to St. Louis court of appeals.A. J. P. Garesche, for plaintiffs in error. M. Kinealy, for defendant in error.

NORTON, J.

This suit was instituted in the circuit court of the city of St. Louis to set aside as fraudulent a certain deed executed by defendant Macklin conveying to defendant Haydell, in trust for the wife of said Macklin, certain lots in the city of St. Louis. Judgment was rendered in plaintiff's favor, which was affirmed by the St. Louis court of appeals, from which judgment defendants have prosecuted their writ of error to this court. It appears from the record that, in 1871, Patrick Macklin, as surety for one Day, executed a note, payable in six months, to William B. Ferguson, as administrator, for $546.95. The note not being paid, said Ferguson brought suit on the same, returnable to the October term, 1872, of the St. Louis circuit court, and on the 9th day of November, 1873, obtained judgment for $626.06. Execution was issued upon this judgment, which was levied by the sheriff upon four houses, two of which were, before the sale, allotted to defendant as homestead. The other two were sold, and were bid off by plaintiff, Kinealy, at $25 each, and he received a sheriff's deed for the same in February, 1874. Basing his right upon this deed, plaintiff seeks in this suit to set aside as fraudulent a deed executed and acknowledged by defendant Macklin on the 14th of May, and recorded on the 15th of May, 1873, conveying the property in controversy to defendant Haydell as trustee for his wife. This claim is resisted by defendants on the ground that the property was purchased with the separate money of the wife, and was hers in equity, and that her husband in making said conveyance was only executing the trust of which said Ferguson and plaintiff had notice when the note was signed by Macklin. The answer also sets up that in October, 1870, said Macklin conveyed the property to one Mackey as trustee for his wife, Ann Macklin, and gave it to Mackey to record, but that he died before recording it; that said deed was lost, and the deed of 1873 was made in place of it. It also sets up that the arrangement made between Kinealy and Ferguson, under which Kinealy bought the property at the sheriff's sale, was champertous.

It appears from the record that Patrick Macklin acquired title to the lots in controversy in 1858 and 1859, and the first question presented is, were the lots purchased with the separate money and means of Mrs. Macklin, so as to impress the property with a trust in her favor? The evidence very clearly establishes the fact that Mrs. Macklin, previous to her marriage, which occurred in 1856, was a prudent, industrious, thrifty woman, and had accumulated considerable money, and became the owner in her own right of a lot in Stoddard's addition to the city of St. Louis, which she afterwards, about 1859, sold to E. M. Buckingham, who testified that the consideration was $1,200; that he paid $500 cash to Mrs. Macklin, and gave his notes for the balance; that soon after the sale the Macklins commenced building on the lots; that at that time Mrs. Macklin was carrying on the millinery business in connection with a grocery store. Mrs. Harkness testified that she had known Mrs. Macklin from a girl; that she was always industrious; that she knew her at Barnum's Hotel, when she was doing fine embroidery work for Mrs. Barnum; always had plenty of money which she saved; that she got money from Canada, and knew her father to give her three or four hundred dollars. Mrs. Donnelly testified that it was Mrs. Macklin's money that built the houses. Rodemacker testified that he did the carpenter's work on the houses built in 1868 and 1869 under a contract with Mrs. Macklin, who paid him for the work, and that Macklin had nothing to do with it. O'Neil testified that he was a banker in the city, and had in his possession the books of account kept by Bishop Kendrick of deposits made with him by his parishioners and others; that the bishop received deposits from his parishioners as a banker; that the account showed that Mrs. Macklin, during the years 1858-59, deposited with the bishop deposits aggregating $1,646.99, the first of which was made 6th of February, 1858, amounting to $504.50, and the last on the 8th of June, 1859, amounting to $313.18, all of which was drawn out at various times during the said years, the account being closed June 8, 1859. Macklin testified that when he married he only had from $60 to $75, and was not engaged at that time in any business; that his wife's money bought and paid for the lots and houses; that she conducted the grocery business, with her own means; that he entered the army during the late war, and remained in the service about two years; that during his absence his wife and her father carried on the grocery business, and that she carried it on after his return; that he was employed in the post-office, after his return, for about two years, at a monthly salary of $35 or $40. He also testified that some time after his return from the army his wife stated that in payment of taxes during his absence she first learned that he had the lots conveyed to himself, and requested him to convey the same to her, as she had bought and paid for the lots, and put the improvements on them with her own means; that in 1870 he procured J. D. Mackey, an attorney, to prepare a deed, conveying said lots to said Mackey in trust for his wife, which was executed and acknowledged, and delivered to said Mackey to be put on record; that he paid Mackey for drawing the deed, and also gave him money to pay for recording the same, and produced the following receipt: “$6.50. St. Louis, October 12, 1870. Received of Ann Macklin $6.50, for making out a deed of her property situated on north-west corner of West Eighteenth street and Water Works street. J. D. MACKEY.” He testified that Mackey signed the receipt, and the signature was shown by Rodemacker to be in the handwriting of Mackey. Macklin's evidence as to the execution and delivery of the deed and receipt was corroborated by that of Mrs. Macklin and Rodemacker. Macklin further testified that two or three years afterwards he learned that the deed had not been recorded by Mackey, who drank very freely of intoxicants before his death, which occurred in June, 1875, in the city hospital; that then he went with Dr. Grayson to find Mackey, who promised to prepare another deed in place of the one he had lost, but, in consequence of his habits, he procured another attorney to draw a deed conveying the property to defendant Haydell in trust for his wife, which is the deed plaintiff is seeking to set aside as fraudulent. This witness is corroborated by Dr. Grayson as to his seeking for Mackey after he learned the deed had not been recorded.

In 1870, when the deed to Mackey as trustee was executed, Macklin testified that he did not owe a single dollar to any one, and there is no evidence whatever in the case that he did. He also testified that when he executed the deed in question to defendant Haydell, as trustee, he did not owe any debt except the Ferguson debt. Plaintiff sought to contradict him in this particular by showing that he had executed two notes to Mrs. Stevens...