Littick v. Means

• Decision Date: 22 May 1917
• Docket Number: No. 18427.,18427.
• Citation: 195 S.W. 729
• Parties: LITTICK et al. v. MEANS et al.
• Court: Missouri Supreme Court

195 S.W. 729

LITTICK et al. v. MEANS et al.

No. 18427.

Supreme Court of Missouri. In Banc.

May 22, 1917.

Rehearing Denied June 1, 1917.

Appeal from Circuit Court, Ray County; George W. Crowley, Special Judge.

Ejectment by George W. Littick and others against Martha Ann Means and others. Judgment for plaintiff, and the named defendant appeals. Reversed and remanded.

J. L. Farris, Jr. & Sons, of Richmond, for appellant. Geo. W. Littick, of Kansas City, and Lavelock & Kirkpatrick, of Richmond, for respondents.

BOND, J.

I. Action of ejectment by the purchasers under a sheriff's deed conveying the title of a defendant in an execution which ran back to a government grant. The wife of the defendant in the execution and her father were made defendants to this action. The former pleaded another action brought against her by one Lou M. Brown, then pending on appeal in the Supreme Court, to try and determine the title to the land in dispute. A second defense, to the effect that there was a defect of parties in the present action, owing to the omission of plaintiffs to join the said Lou M. Brown as a coplaintiff, was stricken out on motion. A third defense was a denial of any other allegations in the petition.

On the trial the plaintiffs deraigned their title by the production of a sheriff's deed conveying to them the title of Joel O. Means, the defendant in the execution, executed on the 23d day of May, 1912, and reciting the obtention of a judgment on May 16, 1910, against the said Joel O. Means in favor of Lou M. Brown, for the sum of $1,594.62, and the levy of an execution under said judgment on the land in suit, and a sale thereafter. The plaintiffs further adduced mesne conveyances vesting the title to said land in Joel O. Means, dating from a patent from the government. The defendant Martha Ann Means, wife of the said judgment debtor, offered in evidence a deed executed by herself and her husband on the 16th day of October, 1909, conveying the same land to John W. McKown, and a quitclaim deed executed by said John W. McKown and wife on the 9th day of December, 1909, conveying the same land to defendant Martha Ann Means. The court excluded these deeds over the objection of the defendant. The defendant also offered in evidence the proceedings as shown by an amended petition in the suit of Lou M. Brown against John W. McKown, Joel O. Means, and Martha Ann Means, the purpose of which was to adjudge said deeds to be fraudulent and void as to Lou M. Brown, the plaintiff in the aforesaid judgment recovered against Joel O. Means. The trial court excluded those records on plaintiffs' objection, but admitted the judgment of the lower court (plaintiffs not objecting to it) on the trial of that case, wherein it was decreed that said deeds were fraudulent and void and should be held for naught. The trial court, however, refused to allow the defendant to show that she had prosecuted an appeal from said judgment, which was then pending in this court and subsequently decided in Brown v. McKown, 265 Mo. 320, 176 S. W. 1043, where the judgment of the lower court was reversed for want of equitable jurisdiction and the petition dismissed. Thereupon at the conclusion of the case the jury returned a verdict in the following form:

"We, the jury, find that the plaintiffs are entitled to the possession of the premises described in the petition, to wit: 50 acres off of the north end of the east half of the northeast quarter of section eleven (11) in township fifty-three (53) of range twenty-nine (29) in Ray county, Missouri, and we find for the plaintiffs and against the defendant Martha Ann Means and in favor of the defendant David C. McKown, and we find and assess the damages of the plaintiffs to be one dollar ($1.00) and the monthly rents and profits of the premises to be

                $_____.              S. P. Nelson, Foreman."
                

After the overruling of her motion for new trial and in arrest of judgment, defendant Martha Ann Means duly appealed to this court.

II. It is the law of this state that a judgment creditor, after exhausting his remedies at law, may sue in equity to set aside a fraudulent conveyance of the lands of his debtor, and subject the proceeds of the sale thereof to the satisfaction of his debt; or such creditor may cause an execution to be issued upon such a judgment and to be levied upon the lands of his debtor which have been fraudulently conveyed, and cause the same to be sold and himself become the purchaser at such sale, and after receiving a sheriff's deed he may then bring a suit in equity to set aside the fraudulent deed as a cloud upon his title. Bradshaw v. Halpin, 180 Mo. loc. cit. 672, 79 S. W. 685, et cases...