Mellier v. Bartlett

• Decision Date: 12 October 1891
• Citation: 17 S.W. 295,106 Mo. 381
• Parties: MELLIER v. BARTLETT et al.
• Court: Missouri Supreme Court

17 S.W. 295

106 Mo. 381

MELLIER v. BARTLETT et al.

Supreme Court of Missouri, Division No. 2.

October 12, 1891.

FRAUDULENT CONVEYANCES — CONFIDENTIAL RELATIONS — CONSIDERATION — JURISDICTION IN EQUITY.

1. On a bill to set aside a fraudulent conveyance, and to subject the land to the payment of plaintiff's claim, it appeared that plaintiff was the assignee of a judgment recovered more than 10 years before the bill was filed; that after the recovery of the judgment the debtor acquired land on which an execution was levied, but the levy was quashed. Afterwards another creditor levied on the same land, and at the execution sale it was bought in by defendant's son-in-law, to whom the sheriff's deed was made. There was no evidence that defendant furnished the money to buy in the land. Held, that it could not be subjected to the payment of plaintiff's claim.

2. Where the lien of a judgment has been lost by the lapse of 10 years, without being revived by scire facias, equity has no jurisdiction of a bill based on the judgment, and seeking to subject the debtor's land to its payment. The judgment must be sued on at law, and, until a recovery is had on it, the owner of the judgment has no more rights than a general creditor.

Appeal from circuit court, Butler county.

Walter B. Mellier filed a bill in equity against George T. Bartlett, Mary M. Bartlett, his wife, and Luke F. Quinn, to subject certain land to the payment of a judgment, the lien of which had been lost by lapse of time. Decree for plaintiff. Defendants appeal. Reversed.

L. D. Grove and S. M. Chapman, for appellants. W. H. Clopton, for respondent.

GANTT, P. J.

On the 4th day of September, 1886, Augustus A. Mellier, of St. Louis, commenced this action in the circuit court of Butler county, Mo., against the defendants George T. Bartlett, Mary N., his wife, and Luke F. Quinn. The writ was returnable to the November term, 1886, the cause was heard by the judge as a chancellor, and a decree rendered for plaintiff February 23, 1888, and from that decree the defendants appeal. The petition is as follows: "Plaintiff states that on the 6th day of April, 1875, he obtained judgment against the defendant George T. Bartlett for the sum of three hundred and ninety-five 37-100 dollars on an accepted draft dated September 6, 1874, due in thirty days thereafter; that he caused an execution to be issued on said judgment returnable to the June term, 1875, and delivered to the sheriff of Butler county, Mo.; that said execution was in due time returned to the court by said sheriff, which return showed that said defendant had no goods or chattels in his county out of which said execution could be satisfied. Plaintiff says that afterwards, to-wit, on the 30th day of October, 1882, defendant George T. Bartlett acquired property in the county of Butler, hereinafter described, subject to execution on said judgment, and plaintiff caused another execution to be issued on said judgment, and placed in the hands of the sheriff of said county of Butler; that said execution was by said sheriff levied on the following described real estate in the town of Poplar Bluff, county of Butler, state of Missouri, as the property of said defendant, George T. Bartlett, to-wit: The west half of lot 25, per the recorded plat of the town of Poplar Bluff, containing one-quarter of an acre of ground, and bounded north by Oak street, easterly by the east half of said lot, south by lot No. 26, and westerly by Fourth street; that said property was advertised by the said sheriff, under said execution, for sale on the 22d day of January, 1884; that on the 20th day of January said defendant George T. Bartlett pleaded his motion to quash said execution, and to restrain said sheriff from selling said property, which said motion was by the circuit court of this county sustained before the hour of sale, and said real estate was not sold to satisfy said judgment. Plaintiff says that in due time, and by proper proceedings, he appealed from said judgment and order of this court to the supreme court of the state, and that said order and judgment of the circuit court was on the ___ day of ___, 1886, being at the April term, 1886, of the supreme court, reversed and held for naught. [1 S. W. Rep. 220.] Plaintiff says that said George T. Bartlett is still the owner of said real estate; that the same was acquired by the said George T. Bartlett from Thomas Gardner on the 30th day of October, 1882; that the said George T. Bartlett was then, and is now, deeply indebted to a number of parties; that he was then, and now is, insolvent, and has no other property out of which an execution can be satisfied; that when said George T. Bartlett acquired said property he caused the same to be conveyed to defendant Mary M. Bartlett, his wife, for the purpose of hindering, delaying, and defrauding his creditors, and especially the plaintiff; that the said Mary M. Bartlett paid no part of the consideration money for said property, but all of the same was paid by the defendant George T. Bartlett; that on the 8th day of November, 1881, R. C. Edwards, administrator de bonis non of the estate of Shelton H. Shrout, deceased, in this circuit court, obtained judgment against George T. Bartlett and others; that execution was issued thereon, and levied on the property hereinbefore described as the property of George T. Bartlett; that said property was sold by the sheriff of this county under said execution on November 6, 1885, and defendant George T. Bartlett, acting by and through defendant L. F. Quinn, was the highest bidder at said sale; that the sheriff of said county made a deed on the said 6th day of November, 1885, conveying said property to Luke F. Quinn at and for the price of $417; that said Quinn now holds said title so acquired in secret trust for said George T. Bartlett; that the said George T. Bartlett paid such purchase money, to-wit, said $417; that said Luke F. Quinn and George T. Bartlett caused said title to be conveyed by the sheriff to said Quinn in furtherance of the aforesaid design of said George T. Bartlett to hinder, delay, and defraud the creditors of said Bartlett, and especially plaintiff. Plaintiff, therefore, prays that he may have judgment against said defendant George T. Bartlett for the sum of $395.37, his debt, with interest thereon from the date of said judgment, to-wit, April 6, 1875, and for costs by plaintiff expended and paid, to-wit, the sum of sixteen 15.100 dollars, and costs of court; that the defendant Luke F. Quinn be declared a trustee, holding said real estate for said defendant George T. Bartlett; that the interest of the said defendant Mary M. Bartlett be divested from her, and that the same be vested in defendant George T. Bartlett, and that the said property, or so much thereof as may be necessary, be held to satisfy the claim of plaintiff, and for such other and further relief as to this honorable court may seem proper." To this petition a demurrer was opposed, for the reason that it did not state facts sufficient to constitute a cause of action in equity. The demurrer was overruled, and defendants answered over, denying all the allegations of the petition. The circuit court tried the cause without a jury, holding that it was a proper case for a chancellor. On the trial the evidence for the plaintiff disclosed that the defendant George T. Bartlett was financially embarrassed.

As stated in the petition, it appeared that on 6th of April, 1875, Augustus Mellier, of St. Louis, obtained a judgment against George T. Bartlett for $395.37. On this judgment an execution was issued to Butler county, in 1875, and returned, "No goods found." No further steps were then taken till 1884, when another execution was sued out, and the homestead on which Bartlett and his wife resided, in Poplar Bluff, was levied on. On the motion or petition of Bartlett, the circuit court of Butler county quashed that levy. Mellier appealed to this court, and in Mellier v. Bartlett, 89 Mo. 135, 1 S. W. Rep. 220, the action of the circuit court was reversed. In the mean time, Mellier had taken no step to revive his judgment, and the 10 years within which he could revive it by scire facias expired. Augustus Mellier then commenced this action in equity. Bartlett was shown by the evidence to have been a resident of Butler county during all this time. It further appeared from the evidence that from 1878 to 1882 there was cross-litigation between Bartlett and Thomas Gardner, and two judgments were rendered. In one case Gardner recovered the property now in dispute, and in the other Bartlett obtained a decree permitting him to redeem said property upon paying Gardner some $5,000. On 28th October, 1882, these suits were amicably arranged, and it was agreed that Gardner would convey this property to Mrs. Mary M. Bartlett, the wife of George T. Bartlett, for $2,500. As a part of that settlement, it was...