Loring v. Atterbury

• Decision Date: 23 March 1897
• Parties: Loring, Appellant, v. Atterbury
• Court: Missouri Supreme Court

39 S.W. 773

138 Mo. 262

Loring, Appellant, v. Atterbury

Supreme Court of Missouri, First Division

March 23, 1897

Appeal from DeKalb Circuit Court.

Affirmed.

Samuel G. Loring for appellant.

(1) The judgment, execution and sheriff's deed in proof vested in this plaintiff all the right, title and estate that Green B Atterbury had in the lands in suit on July 17, 1894, and all the rights of James Ewart, the execution creditor. Knoop v. Kelsey, 121 Mo. 648; Lionberger v. Baker, 88 Mo. 447; Ryland v. Callison, 54 Mo. 513; Wagner v. Low, 15 Lawyers Rep. 785. (2) It is testified that Green B. Atterbury bought and paid for the lands in suit and had the title to said lands placed in his wife (this defendant). In the absence of evidence that the lands in suit were paid for with her separate money, the law presumes that it was paid for with the money of Green B. Atterbury. Patton v. Bragg, 113 Mo. 601; Sloan v. Torry, 78 Mo. 625; White v. Clasby, 101 Mo. 162; Garrett v. Wagner, 125 Mo. 458; McClain v Abshire, 63 App. 340; Jordan v. Buschmeyer, 97 Mo. 94; Walsh v. Ketchum, 84 Mo. 427. (3) The rights of said Ewart, by the execution sale and sheriff's deed in proof, were merged in this plaintiff, and said deed to defendant was conclusively fraudulent as to him. Guerney v. Moore, 131 Mo. 668; Knoop v. Kelsey, 121 Mo 648; Ryland v. Callison, 54 Mo. 513; Lionberger v. Baker, 88 Mo. 447; Wagner v. Low, 15 Lawyers Rep. 785. (4) There was no evidence that said lands were paid for with this defendant's separate money. Because of the opportunities which the marriage relations afford for the practice of fraud upon creditors, transactions between husband and wife should be closely scanned and their bona fides clearly established. Holloway v. Holloway, 103 Mo. 283; 8 Am. and Eng. Ency. of Law, 765; Haxie v. Price, 31 Wis. 86; Booker v. Warrell, 57 Geo. 235; Horton v. Dewey, 53 Wis. 413; Kerney v. Powell, 34 Kan. 22; Robinson v. Clark, 76 Me. 493; Lypscomb v. Lyon, 19 Neb. 571; First Nat. Bank v. Bartlett, 8 Neb. 329; Kaeser v. Wagner, 59 Iowa 40. (5) Assuming the money that was paid for the lands in suit was made in the Lytle hotel, this money was Green B. Atterbury's. At common law the earnings of the wife belonged to the husband. 9 Am. and Eng. Ency. of Law, 817; McCoy v. Hyatt, 80 Mo. 135; Plummer v. Frost, 81 Mo. 428; Schouler on Dom. Rel., secs. 81, 162. (6) The wife's earnings may be secured to her separate use by the assent of her husband or by a settlement made either before or after marriage, or the husband may give his wife her earnings, but such gift must not defraud creditors. 9 Am. and Eng. Ency. of Law, 818; Hozelbaker v. Goodfellow, 64 Ill. 238; Bump on Fraud. Conveyances [3 Ed.], 252; Schouler on Dom. Rel., sec. 163; Basham v. Chamberlin, 7 B. Mon. Ky. 443; Keeth v. Woombell, 8 Pick. (Mass.) 211; Cramer v. Redford, 17 N.J.Eq. 367; 90 Am. Dec. 594. (7) And the burden lies upon the wife to clearly prove the gift. 9 Am. and Eng. Ency. of Law, 818; Plummer v. Frost, 81 Mo. 425; Homell v. Henny, 69 Iowa 752; Skellman v. Skellman, 15 N.J.Eq. 478. (8) At common law all the earnings of Elmer Atterbury belonged to his father, Green B. Atterbury. Schouler on Dom. Rel., sec. 252; Ream v. Watkins, 27 Mo. 518. There is no evidence that Elmer Atterbury was, at the time his mother pretends she got $ 300 from him, emancipated by his father; all the evidence shows that he lived in his father's family and was a clerk in the post office, of which his father was postmaster, and there is no claim that his father paid him for his services.

Kendall B. Randolph and William H. Rogers for respondent.

(1) The voluntary payment of the amount due on a judgment, if made unconditionally and without any reservation of the right to keep the judgment alive, is unquestionably and irrevocably a satisfaction, no matter by whom the payment is made St. Francis Mill Co. v. Sugg, 83 Mo. 476; Hull v. Sherwood, 59 Mo. 172. (2) The sheriff's deed is void on its face. It does not show that the sale was advertised in either a weekly or daily paper. R. S. 1889, sec. 4941. (3) The respondent was entitled to the sole use and benefit of the money she made out of the hotel. Her profits or earnings were not liable for her husband's debts. R. S. 1889, secs. 6864, 6869; Bartlett v. Umfried, 94 Mo. 530; Kidwell v. Kirkpatrick, 70 Mo. 214; Coughlin v. Ryan, 43 Mo. 99.

Brace J. Robinson, J., absent.

OPINION

Brace, J.

This is a suit by petition in equity, brought by the plaintiff, purchaser at execution sale, of all the right, title and interest of Green B. Atterbury, to certain lots in the town of Maysville, DeKalb county, to set aside a deed executed by Robert T. Richardson and wife, dated the twentieth day of August, 1891, conveying said lots to the defendant, the wife of the said Green B. Atterbury, and praying that the title thereby acquired be vested in the plaintiff on the ground that said deed was executed to hinder, delay and defraud creditors of the said Green B. Atterbury. From the judgment in favor of the defendant in the circuit court, the plaintiff appeals.

It appears from the evidence that on the ninth of October, 1888, one James Ewart recovered judgment against the said Green B. Atterbury for the sum of $ 2,473.55. That execution thereon issued, and was levied upon the lots in question on the seventeenth of July, 1894, and that the same were sold by the sheriff at public sale on the twelfth of October, 1894, the plaintiff becoming the purchaser for the sum of $ 110 and securing a sheriff's deed therefor.

The evidence tended to prove that the judgment was rendered upon a promissory note, executed by Green B Atterbury, payable to one Lipscomb, and by him assigned to Ewart as collateral security. That at the time the judgment was recovered, the said Atterbury was and ever since has been insolvent. That the plaintiff was the attorney of said Ewart, brought the suit, and sued out the execution thereon; that since the judgment the said Lipscomb has paid off his indebtedness to Ewart, and that any money realized on the payment really belongs to Lipscomb, who is not a party to the suit, and seems to have had no hand in suing out the execution or bringing this suit. That some time prior to August, 1891, the defendant received as her distributive share in the estate of her deceased father the sum of $ 377.41, which went into the hands of her husband. That about the first of October, 1890, the defendant leased the hotel in Maysville, known as the "Lytle House," went into possession, and was running the same...