Lionberger v. Baker

• Decision Date: 31 October 1885
• Citation: 88 Mo. 447
• Parties: LIONBERGER v. BAKER et al., Appellants.
• Court: Missouri Supreme Court

88 Mo. 447

LIONBERGER

v.BAKER et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

W. H. Clopton, F. F. Espenschied and G. D. Bantz for appellants.

(1) Davis took an assignment of the interest the Fourth National Bank had in the suit in equity to charge the property with the judgment. He also took an assignment of the judgment, but it was all one transaction, the same consideration transferred to him both rights, i. e., the suit then pending and the right to levy the execution. The mere right to file or to prosecute a bill in chancery on the ground of fraud cannot be assigned even in equity. Bispham Eq., sec. 166; 2 Story's Eq., 1040; DeHoughton v. Money Law, 2 Chan. App. 169; Smith v. Harris, 43 Mo. 557; Wallen v. Railroad, 74 Mo. 522; Railroad v. Railroad, 20 Wis. 183; Prosser v. Edmonds, 1 You. and Cal. 481, 499; French v. Shotwell, 5 John. Ch. 566; McMahon v. Allen, 34 Barb. 56. The last case construes New York statute like ours. R. S., sec. 3462; Gardner v. Adams, 12 Wend. 297; Marshal v. Means, 12 Ga. 61; Wilhite v. Roberts, 4 Dana, 172. (2) The court erred in admitting proof of any conversations with John Baker by witness, Simon, after the delivery of the deed to Jessie G. L. Baker, and of facts transpiring after the deed to her. As against her, the testimony is clearly incompetent. Boyd v. Jones, 60 Mo. 454. (3) The court erred in admitting the alias execution, levy, advertisement and sheriff's deed. When the interest of an heir is to be sold, the quantity of the interest should be stated and the number of the heirs given. Gales v. Christy, 4 La. An. 295; Diamond v. Coutney, 12 La. An. 251. Not only the description of the property, but the defendant's interest should also be given. Evans v. Ashly, 8 Mo. 177; Henry v. Mitchell, 32 Mo. 512. (4) If a valuable consideration was given for the deed charged to be fraudulent, no matter how trivial, if the purchaser is free from the knowledge of fraudulent intent the conveyance is good. Shultz v. Brown, 27 Pa. 123; Dygert v. Remershire, 32 N. Y. 629; s. c., 39 Barb. 417; Seward v. Jackson, 8 Cow. 430; R. S., 1879, sec. 2502. The plaintiff failed to prove that the conveyance was voluntary, or that the daughter of John Baker was party to any fraudulent intent, or that the latter was insolvent at the date of the conveyance. (5) Even where the consideration is grossly inadequate and the conveyance is for that reason regarded as partially voluntary and to that extent constructively fraudulent, the grantee not only has the legal title but also priority in equity over the grantor's creditors to the extent of the consideration and for that purpose equity treats the conveyance as a security. McMeekin v. Edmonds, 1 Hill Ch. 288; Van Wyck v. Baker, 16 Hun, 169; Gordon v. Tweedy, 71 Ala. 213; Patrick v. Patrick, 77 Ill. 569; Staney v. Laning, 58 Ia. 662. (6) A sale under execution does not deprive the original grantee of these equities. Boyd v. Dunlap, 1 John. Ch. 478. A purchaser of an equitable title takes subject to the equities of the person holding the legal title. Jasper Co. v. Jarvis, 76 Mo. 13; Mann v. Best, 62 Mo. 491. Lionberger took with notice of the foregoing equities and subject to them. Wallace v. Wilson, 30 Mo. 335; Rhodes v. Outcalt, 48 Mo. 367. (7) The sheriff's sale was inoperative because there was no interest or estate in lands to be sold on execution. Freeman on Executions, sec. 187; Lewin on Trusts, 547; McIlvane v. Smith, 42 Mo. 45; Doe v. Greenhill, 3 Barn. & Ald. 690; Rogers v. Cary, 47 Mo. 232. (8) Plaintiff's remedy after the sheriff's sale was ejectment on the death of the life tenant. Bump Fraud. Convey. 529; Smith v. Cockrell, 66 Ala. 82; Crauson v. Smith, 47 Mich. 190. Although a creditor may before sale on execution, bring his bill to aid the execution and remove embarrassments to such sale ( Zoll v. Soper, 75 Mo. 460; Kerr v. Kerr, 6 Lea. 225), but after sale on execution, the bill will not lie as a bill to remove a cloud and cannot be maintained by one not in possession. Herrington v. Williams, 31 Tex. 448; Lake Road v. Bedford, 3 Nev. 399; Orton v. Smith, 18 How. U. S. 363; Polk v. Pendleton, 31 Md. 118. (9) John D. Davis was a subsequent purchaser within the meaning of Revised Statutes, section 2498. McNeil v. Turner, 16 Wall. 352; Block v. Long, 60 Mo. 181. (10) Conceding that the conveyance from John to Jessie G. L. Baker was purely voluntary, the subsequent marriage of the grantee converts the grant into one for valuable consideration. Story v. Arden, 1 John. Ch. 261, 271; On Error, 12 John Ch. 536; Wood v. Jackson, 8 Wend. 33; Huston v. Cantrell, 11 Leigh, 137; Bently v. Harris, 2 Grat. 357; Pradgers v. Laugham, 1 Siderfins, 133; East India Co. v. Clavell, Prec. in Ch. 380, 381; Brown v. Carter, 5 Vesey, 879; Newland on Contracts, 404; Sugden on Vendors, 436, 437; Presvill v. Wilson, 102 U. S. 22.

John D. Davis for respondent.

(1) If a debtor is in embarrassed circumstances and makes a voluntary conveyance, and is afterwards unable to meet his debts owing at the time of making the deed, in the ordinary course prescribed by law for their collection, or is reduced to such a condition that an execution against him would be unavailing, such conveyance is fraudulent and void as to those debts and the property conveyed is subject to their payment. Potter v. McDowell, 31 Mo. 62; Eddy v. Baldwin, 32 Mo. 369; Howe v. Waysman, 12 Mo. 169; Woodson v. Pool, 19 Mo. 340; Pawley v. Vogel, 42 Mo. 291; Reppey v. Reppey, 46 Mo. 571; Henderson v. Dickey, 50 Mo. 161; Bobb v. Woodward, 50 Mo. 95; Patten v. Casey, 57 Mo. 118; Fisher v. Lewis, 69 Mo. 629; Bump on Fraud. Con. [1 Ed.] 293, 296, 299. “Solvency consists not only in the present ability of the debtor to pay his debts, but in such a condition of his means that payment can be enforced by process of law.” Eddy v. Baldwin, 32 Mo. 369. (2) The payment of a nominal consideration does not entitle the grantee to be regarded as a purchaser for value. Kuykendall v. McDonald, 15 Mo. 416; Fisherv. Lewis, 69 Mo. 629; Davidson v. Little, 22 Pa. St. 252. (3) Gross inadequacy in the price paid for land is a badge of fraud. Robinson v. Robards, 15 Mo. 459; Curd v. Lackland, 49 Mo. 451; Ames v. Gilmore, 59 Mo. 537. (4) Where a party takes a conveyance for an expressed consideration and afterwards to set up the same conveyance as a gift, the court may set it aside on that ground. Galbreath v. Cook, 30 Ark. 417; Cadwallader v. West, 48 Mo. 483. (5) The burden of proof rests on the grantee in case of a voluntary conveyance to prove that the grantor was solvent and not embarrassed at the time of the conveyance. Lane v. Kingsberry, 11 Mo. 402; Grimes v. Russell, 45 Mo. 431. (6) A conveyance without consideration or merely for love and affection made by an insolvent is void as against creditors, though the grantee was ignorant of the insolvency and innocent of the fraud. Gamble v. Johnson, 9 Mo. 605; White v. McPheeters, 75 Mo. 286; Hurley v. Taylor, 78 Mo. 238; Bohannon v. Combs, 79 Mo. 305. (7) The purchaser at an execution sale occupies as advantageous a position as though he were a creditor in a proceeding to set aside the conveyance for fraud. Bobb v. Woodward, 50 Mo. 95; Ryland v. Callison, 54 Mo. 513; Zoll v. Soper, 75 Mo. 460. And is entitled to a decree vesting the title to the land in him, and cannot be compelled to accept the amount of the judgment with all costs and expenses in lieu of the land. Allen v. Berry, 50 Mo. 90; Kinealy v. Macklin, 2 Mo. App. 241. (8) A proceeding in equity to have a fraudulent deed annulled will be sustained even though the plaintiff is not in possession of the land, recourse being necessary to extrinsic evidence to establish the fraud. Beedle v. Mead, 81 Mo. 297; Moore v. Wingate, 53 Mo. 398-4; Bobb v. Woodward, 50 Mo. 95, 101. In the case at bar, neither party is in possession or entitled to possession, as there is an outstanding life estate. An objection to a proceeding in equity, that there is an adequate remedy at law, cannot avail to reverse the decree, if made for the first time on appeal. Whetstone v. Shaw, 70 Mo. 575; Hemann v. Skrainka, 14 Mo. App. 577; Walker v. Owen, 79 Mo. 563. (9) Errors alleged to have occurred at the trial below, but not mentioned in the motion for a new trial, will not be considered in the appellate court. Griffin v. Regan, 79 Mo. 73. (10) Under the well established practice in this state a creditor has his election to either ( a) file a creditor's bill to charge property fraudulently conveyed with the payment of his debt, or ( b) to sell under execution the interest of the debtor and then file his bill to annul the fraudulent deed. To proceed in the latter way by sale under execution is the usual course, and has received the sanction of this court in so many cases that it has become a well established rule of real property and the foundation of unnumbered titles. Bobb v. Woodward, 50 Mo. 95, 101; Ryland v. Callison, 54 Mo. 513; Zoll v. Soper, 75 Mo. 460. (11) In an equity case where the trial court has the witnesses personally before it and there is abundant evidence to sustain its finding of facts, the Supreme Court will not interfere and reverse such findings unless it is clear it should have been otherwise. Erskine v. Lowenstein, 82 Mo. 301; Judy v. Bank, 81 Mo. 404; Parke v. Thompson, 81 Mo. 565; Royle v. Jones, 78 Mo. 403; Chapman v. McIlwrath, 77 Mo. 39.

BLACK, J.

This is a suit to set aside a deed made by John Baker to his daughter, Jessie G. L. Baker, now Mrs. Antisdel, dated July 19, 1878, conveying to her a one thirty-sixth of certain real estate in the city of St. Louis. The Fourth National Bank recovered judgment against John Baker in January, 1879, for over five thousand dollars upon notes dated in December, 1876, and June, 1877. John D. Davis purchased the judgment and under an execution issued thereon became the purchaser of the property in the name of the...