McCollum v. Crain

• Decision Date: 31 March 1903
• Citation: 101 Mo. App. 522,74 S.W. 650
• Parties: McCOLLUM v. CRAIN.
• Court: Missouri Court of Appeals

74 S.W. 650

101 Mo. App. 522

McCOLLUM v. CRAIN.

Court of Appeals at St. Louis, Missouri.

March 31, 1903.

FRAUDULENT CONVEYANCE — INTENT OF GRANTOR — WHO ENTITLED TO SET ASIDE.

1. The voluntary conveyance, by one against whom there was a pending suit, of all his property, to his wife and children, is fraudulent and void as to the plaintiff in the suit, no matter what may have been the intent of the grantor.

2. The fact that the suit is in tort makes no difference.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by Annette J. McCollum against George A. Crain. Judgment for defendant. Plaintiff appeals. Affirmed.

On June 3, 1901, Callie G. Boughton recovered in the Cape Girardeau court of common pleas a judgment against Jesse W. McCollum for $600. An execution was issued on this judgment, and delivered to the sheriff of Stoddard county, who, by direction of plaintiff and her attorney, levied upon the following lots in the city of Dexter, in the said county, as the property of Jesse McCollum, to wit: "All of lots 14, 15, 16, and 17, and 70 feet off of the north end of lots 14 and 15, and 30 feet off of the north end of lots 16 and 17, and 90 feet off of the north end of lots 1 and 2, all in block 21 in the city of Dexter. Also lots 3, 4, 5, 6, and 7, block 4, and lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12, block 5, and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 in block 6, in McCollum's addition to the city of Dexter." After the levy was made the lots were duly advertised by the sheriff for sale. Before the day of sale, plaintiff sued out a temporary writ of injunction against the sheriff, restraining the sale of said lots. Plaintiff claimed to be the owner in fee of all of said lots, and alleged that the sale under the execution would cast a cloud over her title, and do her irreparable injury. The answer alleged that the suit in which the judgment was rendered was commenced in June, 1895, and was continuously pending until the final judgment was rendered; that, when the suit was commenced, Jesse McCollum was the owner in fee of all the lots levied upon, but that pending the suit he made a voluntary conveyance thereof to his wife (the plaintiff) and two of his minor children, with the intent to hinder and delay plaintiff in the collection of her demand. The reply denied generally the affirmative allegations in the answer. On the trial the following admissions were made: "It is admitted by counsel that Jesse W. McCollum was the original owner of the land and property in controversy, and that he is the common source of title. It is admitted that plaintiff was the wife of J. W. McCollum at all times mentioned, and that the two children mentioned in the deeds are their children. It is admitted that the judgment upon which the execution was issued was rendered June 3, 1901. It is admitted that the suit of Callie G. Boughton against Jesse W. McCollum, in which judgment was rendered in the Cape Girardeau common pleas court on the 3d day of June, 1901, as stated in plaintiff's petition, was brought in the year 1895 in the circuit court of Stoddard county; that that suit was continuously pending in that court until the change of venue to the common pleas court of Cape Girardeau county; that it continued to be pending in that court until the judgment of June 3, 1901, was rendered." To show title in her, plaintiff read in evidence the following deeds: First. A deed dated February 19, 1889, from the trustees of Dexter Hall Company (of which Jesse McCollum was one) to plaintiff, to lots 16 and 17 in block 16, original town of Dexter, duly acknowledged and recorded February 19, 1889. Second. Deed from Jesse W. McCollum and wife to Russell A. Sisler, dated December 2, 1898, conveying 90 feet off of the north end of lots 1 and 2, block 21, original town of Dexter, duly acknowledged and recorded. Third. Deed from Jesse W. McCollum and A. J McCollum, his wife, dated March 23, 1898, to Russell A. Sisler, conveying "all of lots 14, 15, 16, and 17, block 16, of the city of Dexter, 70 feet off of the north end of lots 14 and 15, block 21, of the city of Dexter lots 3, 4, 5, 6 and 7, block 4, of McCollum's addition to the city of Dexter, 30 feet off of the north end of lots 16 and 17,...