Mansur & Tebbetts Implement Co. v. Jones

• Decision Date: 01 March 1898
• Court: Missouri Supreme Court
• Parties: MANSUR & TEBBETTS IMPLEMENT CO. v. JONES et al.

45 S.W. 41

143 Mo. 253

MANSUR & TEBBETTS IMPLEMENT CO. v. JONES et al.

Supreme Court of Missouri, Division No. 2.

March 1, 1898.

FRAUDULENT CONVEYANCE — ACTION TO SET ASIDE — PETITION — SUFFICIENCY OF EVIDENCE — SUBROGATION.

1. Rev. St. 1889, § 571, providing that any attaching creditor may sue to set aside any fraudulent conveyance of any property attached, authorizes an attaching creditor to proceed without more, and removes the case from the general rule that one seeking aid in equity must first exhaust his remedies at law.

2. J., the holder of a second deed of trust, paid to the trustee the sum secured by the first deed of trust, and the note and deed were surrendered to her. Held, that J. was not, as to the grantor's creditors, entitled to be subrogated to the rights of the original holder of said note and deed, if her deed of trust was fraudulent as to creditors.

3. In an action by attaching creditors to set aside as fraudulent a trust deed of land from the debtor to his mother, it appeared that she sold him the land in January, 1893. That he then owed her $3,500; that in May, 1893, he paid to and for her $2,885; that on September 30, 1893, he executed to her the deed of trust to secure a note for $2,500, which was in fact executed on the same day, but was dated January 19, 1893; that the deed was recorded the same day; that plaintiff's agent was at the time pressing the grantor for payment for goods sold before the conveyance to him by his mother, but not delivered until after such conveyance; that said debtor told said agent that his brother would sign as security for the debts; that said agent then went to see said brother, who refused to do so; that while the agent was absent the deed in question was executed and recorded; that when said debtor purchased said land he gave his mother a note for $2,500 and a trust deed to secure the same, which had been destroyed; that they claimed that the last note and deed of trust were intended to duplicate the first; and that the land was worth $4,500. Held, that such deed was fraudulent as to said creditors.

Appeal from circuit court, Audrain county.

Action by the Mansur & Tebbetts Implement Company, a corporation, against George W. Jones, Sarah M. Jones, George L. Jones, Allen W. Gilstrap, William P. Beach, and James W. White. From a judgment in favor of defendants, plaintiff appeals. Reversed and remanded.

Ben Eli Guthrie and Dysart & Mitchell, for appellant. Chas. P. Hess and Geo. Robertson, for respondents.

BURGESS, J.

This is a suit by an attaching creditor, under section 571, Rev. St. 1889, upon two different judgments, in suits begun by attachment, to set aside certain deeds for fraud, affecting lots 1, 2, and 3, in block 61, in the city of Macon, Mo. The suit was begun in the circuit court of Macon county, Mo., from which the venue was subsequently changed to the circuit court of Audrain county.

The petition, leaving off the formal parts, is as follows: "Now, at this day, comes the said plaintiff, by its attorneys, and for cause of action against said defendants states that the said plaintiff is a corporation, duly organized and existing under the laws of the state of Missouri for business purposes. That at the April term, 1894, of the said circuit court of Macon county, the plaintiff obtained a judgment against the defendant George L. Jones and one David M. Jones for the sum of $470.60, in a suit by attachment against the said George L. Jones and David M. Jones, which said judgment bears interest at the rate of six per cent. per annum from the date thereof, together with the costs of said suit assessed at the sum of ___ dollars. That at the April term, 1894, of the said circuit court of Macon county, Missouri, the plaintiff obtained a certain other judgment against the defendant George L. Jones and one Thomas M. Jones for the sum of $2,248.74, in a suit by attachment against the said George L. Jones and Thomas M. Jones, which said judgment bears interest at the rate of six per cent. per annum from the date thereof, with the costs of said suit assessed at the sum of ___ dollars. That at the date of the rendition of the said two judgments the said defendant George L. Jones was the owner in fee of the following described real estate situate and lying and being in the county of Macon, state of Missouri, to wit, lots 1, 2, and 3, in block 61, in the city of Macon and county of Macon aforesaid, and had been the owner of said property as aforesaid since the 19th day of January, 1893. That in the said attachment suits the said real estate was seized and attached as the property of the said George L Jones, to satisfy and pay the demands claimed in said suits, and the said writs of attachment were levied upon the said property and real estate, and the same was seized and attached on the 13th day of October, 1893, which attachments were duly sustained and held valid at the said April term, 1894, of the said circuit court, and plaintiff's said judgments were and are liens upon the said real estate from and after the said 13th day of October, 1893, subject, however, to a deed of trust for $1,000, executed by the said George L. Jones and his wife, Maggie E. Jones, to the defendant Allen W. Gilstrap, on the 8th day of May, 1893, to secure a note executed and payable to one W. T. Moody of the same date, and payable 90 days after date, with interest at eight per cent. per annum, which said deed of trust is recorded in Book 91, at page 189. That since the said April term, 1894, and after the said last-mentioned note became due, the same was paid to the said Allen W. Gilstrap and fully discharged, to wit, on the ___ day of ___, 1894, and the said W. T. Moody, on the date last aforesaid, executed and delivered to the said George L. Jones a deed of release to the said real estate. Plaintiff further states that on the 30th day of September, 1893, the said defendant George L. Jones, with his wife, Maggie E. Jones, made and executed a pretended deed of trust on the said real estate to the defendant William P. Beach, as trustee, to secure the payment of a note purporting to be for the sum of $2,500, given by the said George L. Jones to the defendant Sarah M. Jones, being dated January 19, 1893, with interest at six per cent. per annum, and due eighteen months after the date thereof, which said pretended deed of trust was filed for record on the 30th day of September, 1893, and is recorded in Book 91, at page 337, of the records of Macon county. That the said last-mentioned deed of trust was executed, made, and delivered by the said George L. Jones to the said Sarah M. Jones without any consideration whatever, as plaintiff is informed and believes, or else the same was given for a sum largely in excess of any amount due from the said George L. Jones to the said Sarah M. Jones, for the purpose of defrauding, hindering, and delaying the creditors of the said George L. Jones, and the same was executed and delivered by the said George L. Jones, and accepted by the said Sarah M. Jones, with the intent and for the purpose of cheating, defrauding, hindering, and delaying the creditors of the said George L. Jones, and especially to cheat and defraud the said plaintiff, and to hinder and delay plaintiff in collecting and securing its said demands; and plaintiff avers that the said last-mentioned deed of trust was not made or accepted in good faith, for a fair and valuable consideration, but that the same was without consideration, and in fraud of the creditors of the said George L. Jones, and in fraud of said plaintiff, and the same was contrived by and between the said George L. Jones and Sarah M. Jones to dispose of and conceal the said property, so as to hinder and delay the creditors of the said George L. Jones, and to prevent the said real estate from being subjected to the claims of the creditors of the said George L. Jones, and to the said demands of the plaintiff; and plaintiff further avers that the said last-mentioned deed of trust is fraudulent and void as to the creditors of the said George L. Jones and as to this plaintiff. Plaintiff further states that the defendants George L. Jones and Sarah M. Jones are seeking and proceeding to sell the said real estate under the said two deeds of trust, and have procured notices to be published in the Macon Times, a newspaper published in the city of Macon, that the said real estate will be sold on Friday, the 31st day of August, 1894, one of the said notices being signed by the said James W. White, sheriff of Macon county, Missouri, and the other by the said William P. Beach, trustee, the said Sarah M. Jones falsely pretending that she is the holder and owner of the note executed and secured to the said W. T. Moody, and falsely pretending that the said Allen W. Gilstrap refuses to execute the said trust. That neither of the said deeds of trust appears satisfied of record, and, unless the defendants be enjoined and restrained by an order of this court, they will proceed to sell, and will sell, the said real estate under the said two deeds of trust, pursuant to the advertisement aforesaid. That if the defendant Sarah M. Jones, who is the mother of the said George L. Jones, furnished the money to pay off the said Moody note and deed of trust, which is denied by plaintiff, she was a mere volunteer, and cannot claim to be subrogated to the lien of said Moody. Wherefore plaintiff prays judgment of this court that the defendants, and each of them, be enjoined and restrained for the time being from proceeding to sell and from selling said property, as advertised in said notice, and that a temporary injunction be granted in vacation, enjoining and restraining the sale of the said property under the said deeds of trust, and that, on a final hearing of this cause, said injunction be made perpetual; and the plaintiff further prays judgment that the said first-mentioned deed of trust to Allen W. Gilstrap, trustee, be adjudged to...