McCourtney v. Sloan

• Citation: 15 Mo. 95
• Parties: MCCOURTNEY ET AL. v. SLOAN ET AL.
• Decision Date: 31 October 1851
• Court: United States State Supreme Court of Missouri

15 Mo. 95

MCCOURTNEY ET AL.

v.SLOAN ET AL.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

Sometime in the year 1819, John McCourtney, Sr., John McCourtney, Jr., Thos. Sloan, the defendant, and Solomon G. Krepps, all living in Fayette county, Pa., became sureties for the firm of Baltzell & Danforth, at Wheeling, Va., for a debt which that firm owed to one Jonathan Walton, for whisky, and for which they gave their joint obligations, with their principals, dated the 11th of June, A. D. 1819, payable nine months after date, for $743 50, with interest. Afterwards, said Baltzell & Danforth, the principals, having become insolvent, the said sureties, on the 25th of July, 1821, confessed judgment in favor of said Walton for the debt, amounting $836 43 1/2 and costs, which was duly entered of record, on the 30th of said July in the Court of Common Pleas of Fayette county, and on which Sloan and Krepps paid Walton $418 20, on said 25th of July. On the 1st of January, 1822, John McCourtney, Sr., and wife, by their deed of that date, conveyed the premises described in the bill, for the consideration of love and affection, to the complainant, Martin McCourtney, of which the defendants, at the time, had actual notice. And in pursuance of and under said conveyance, said Martin, as early as the spring of 1833, took possession of, and ever since has resided with his family upon said premises, cultivating and improving them by clearing the land and erecting fences and several buildings upon the same. And on the 27th of January, 1841, sold to his co-plaintiff, Henry H. Goodwin, by deed, in due form and duly recorded; 245.17 acres of said premises, for the consideration of $1,580 00.

On the 10th December, 1822, and while said Sloan and Krepps, as yet, had paid no more than their own share of the aforesaid security debt, a suit by attachment was commenced in the Circuit Court of St. Louis county, against John McCourtney, Sr., as a non-resident, in the name of Jonathan Walton, upon the aforesaid judgment, in which the sum sworn to was $418 23 1/2 cents. The said McCourtney, Sr., the defendant in the attachment suit, was not served with process, nor did he appear in the case, but the attachment was levied upon the premises described in the bill. On the 29th October, 1823, judgment by default was rendered upon publication of notice to John McCourtney, Sr., as a non-resident defendant, for $827 06 and $112 97 damages, and costs of suit, although the sum sworn to was only $418 23 1/2, with interest from the 25th July, 1821. Josiah Spalding, Esq., was the attorney who brought the suit, and was employed as such for that purpose, by said Sloan and Krepps, who were his clients, and who, as such, sent to him the exemplification of the record of the judgment, upon which the suit was brought, as belonging to them. Spalding knew nothing of Jonathan Walton in the transaction. His communication was entirely with Sloan and Krepps. On the 25th of November, 1828, a bond was filed for execution on said judgment, and attached to said bond is the affidavit of Henry G. Dales, verifying the hand-writing of Sloan and Krepps two of the obligors and sureties, that they were each worth more than $2,000, and that the claim belonged to said Sloan. On the 13th February, 1829, a special fieri facias was issued against the land attached, under which it was sold on the 25th March of that year, to Spalding, for the ultimate benefit of Sloan and Krepps, for whom he was then acting, in the matter of the purchase, and for whose benefit he purchased the same, for $50 00, with the understanding, that he would, at any time, convey the land to them, on their paying him his fees for his services. The $50 00 paid by Spalding for the land, was credited upon the execution, he paying the money to the sheriff, and a deed was executed to him by the sheriff for the land. At the time of the sale, the land was worth from nine to ten dollars per acre, and there were 480 arpents, or 408.33 acres in the tract.

Afterwards, Spalding, still acting as the agent and attorney of Sloan and Krepps, on receiving from them his fees aforesaid, amounting to $32 00, conveyed the land, by his quit-claim deed, on the 28th October, 1829, to Sloan & Krepps, for the nominal consideration of $1 00. After the purchase for Sloan & Krepps, by their agent and attorney, Spalding, as above stated, the defendant, Sloan, on the 25th July, 1829, called on John McCourtney, Jr., in the city of Wheeling, where he then resided, and demanded of him contribution, on account of his suretyship, as stated above. The bill alleges, that the demand by Sloan, was for said John's contributory share, say 1/4, and also for the share of John McCourtney, Sr., being also 1/4, that is for one-half; and said John, Jr., on his oath testified to the same thing. It is also alleged in the bill, and sworn to by said John, Jr., as a witness, that the said John, Jr., did pay the aforesaid contributory shares, with interest, both for himself and for John, Sr., having executed his three notes therefor, which were paid at maturity. It is stated by Sloan, in his answer, and also deposed by said Jonathan Walton, that said Jno. McCourtney, Jr., paid only his own contributory share of one fourth, and one third of the share of Jno. McCourtney, Sr., and so the Circuit Court found. But on the settlement, between Sloan and John McCourtney, Jr., the land bought for Sloan & Krepps, by Spalding, and conveyed to them by him, as aforesaid, and shown to have been worth from $9 to $10 per acre, was not taken into account, nor was any credit given by them for the same in the settlement.

The court below decreed, that upon the payment, by complainants to defendants, of the contributory share of Jno. McCourtney, Sr., of said security debt, with interest, the title to the premises described in the bill, vested in them; holding that said land was liable for said contributory share of Jno. McCourtney, Sr. The bill also alleged, and it was so proved by the witness, Jno. McCourtney, Jr., that at the time the parties became sureties for Baltzell & Danforth, the whisky bought was put into Sloan's possession, as a pledge to indemnify them for their suretyship. But Danforth purchased about $200 worth of stills from Sloan, and the latter, in order to make his own debt for the stills secure, in violation of his faith to his sureties, delivered up the whisky to B. & D., without the knowledge or consent of his co-sureties. And that shortly afterwards B. & D. became insolvent. That all these facts were within the knowledge of one Ezekiel Baldwin, and that as long as he lived, the McCourtneys refused to settle with Sloan and Krepps for any part of the aforesaid security debt paid by him. And that it was only after said Baldwin's death, and when the proof of the said fact was impossible, that they consented to settle. These facts were denied by the answer of Sloan, and they were not affirmed by the court on the hearing. There was evidence of the insolvency of Jno. McCourtney, Sr., on the 11th of January, 1822. The deed from Jno. McCourtney to Martin, offered in evidence by complainants, being an exhibit to his bill, was objected to because the certificate of acknowledgment was defective, in that it did not establish the identity of the grantor.

WELLS & BUCKNER, for Appellants.

I. The decree, as a question of equity practice, cannot be sustained. The pleadings were not in a condition for the court to make a decree, giving affirmative relief to the defendants. There was no cross-bill, and the defendant had not applied for any affirmative relief in the cause. The only decree the court could make, was, either to perpetuate the injunction or dismiss the bill and dissolve the injunction: Story's Eq. Pleadings, 414.

II. There is no principle of equity that authorized the court to decree the contributory share of Jno. McCourtney, Sr., of the Walton debt, paid by the defendants, to be a lien upon the tract of land in controversy. The deed from father to son, was either fraudulent and void as against Walton and those claiming under the judgment, or it was bona fide and good against his creditors. If the former, the title of the son is void, as against the defendants, and ought to be so decreed. They would take the land without any lien or other equity of the plaintiff. If, on the contrary, the deed is good against the creditors of the father, or those claiming under him, there is no legal, nor equitable obligation, express or implied, which should make the son responsible for the debt of the father. Walton had no equitable lien upon this land, nor did the co-securities acquire any by their attachment suit, in the hands of the grantee.

III. Natural equity is not legal equity, and there would have been as much legal equity in decreeing the title to the land in the defendants, on condition that they would pay to complainants, by a given day, the amount of his father's contributory share of the...