Marr v. McIntosh

• Decision Date: 31 October 1855
• Citation: 21 Mo. 541
• Parties: MARR, Appellant, v. MCINTOSH & MCINTOSH, Respondents.
• Court: Missouri Supreme Court

21 Mo. 541

MARR, Appellant,

v.MCINTOSH & MCINTOSH, Respondents.

Supreme Court of Missouri.

October Term, 1855.

1. Where, in an action brought by A. against B. and C. for the possession of land -- A. claiming as purchaser under an execution sale against B.--C., one of the defendants, set up a title under a deed from B. prior to the sheriff's deed to A., and it is found by the court that the said deed from B. to C. is fraudulent and void as against A., thus negativing the only defence set up by C.: held, that A. is entitled to judgment against C. as well as against B., and that, too, although he may have offered no evidence of title in B. under whom both A. and C. claimed.

Appeal from Perry Circuit Court.

This was an action in the nature of an ejectment, to recover possession of certain tracts of land. The facts, as found by the court, are as follows: The defendant, Benj. W. McIntosh, by a deed dated September 21st, 1847, conveyed to Seth B. McIntosh certain tracts of land. At the time of this conveyance the said B. W. McIntosh was largely indebted to various persons, and among others, to the plaintiff; and the said conveyance was made with intent to delay and defraud the creditors of the said B. W. McIntosh. Afterwards, at an execution sale under judgments against the said B. W. McIntosh, in favor of said creditors, the plaintiff, Marr, purchased the land so conveyed to Seth B. McIntosh; and this suit was brought against the said B. W. and the said S. B. McIntosh, who were both in possession of the said land, to recover possession of the same. In this suit, the only title set up in his answer, by the said S. B. McIntosh, was under the said deed of September 21st, 1847. The court below gave judgment for the plaintiff against the said B. W. McIntosh, and, although declaring the deed from Benjamin W. McIntosh to the said S. B. McIntosh fraudulent and void as against the plaintiff, gave judgment for the defendant, S. B. McIntosh. The court declared the law to be that the purchase by the said Marr, the plaintiff, and the sheriff's deed to him, though sufficient as against B. W. McIntosh, did not show any sufficient title in the said plaintiff whereon to predicate a right of recovery against his co-defendant, S. B. McIntosh, nor is the deed from B. W. McIntosh to said S. B. McIntosh any evidence of title in B. W. McIntosh before its date, upon which the plaintiff, as his vendee, can claim a right of recovery against S. B. McIntosh, and, in the absence of any other evidence of title in plaintiff, the defendant, S. B. McIntosh, is entitled to a verdict and judgment.

Frissell, for appellant.

1. When both plaintiff and defendant trace their...