Merry v. Fremon

• Decision Date: 31 October 1869
• Citation: 44 Mo. 518
• Parties: JAMES MERRY and JOHN GLENNY, Appellants, v. ADELE B. FREMON et al., Respondents.
• Court: Missouri Supreme Court

44 Mo. 518

JAMES MERRY and JOHN GLENNY, Appellants,

v.ADELE B. FREMON et al., Respondents.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Lighthizer, and Smolley, for appellants.

I. The Probate Court of St. Louis has no equitable jurisdiction. The premises conveyed by trustee Dick to LeBeaume, however fraudulent the deed, formed no part of C. Zelina Fremon's estate at the time of her death, nor had the Probate Court any jurisdiction over them. (George v. Williamson, 26 Mo. 193; McLaughlin v. McLaughlin, 16 Mo. 242.) To perfect the right of creditors to set a deed aside, they must first exhaust the personal estate. (Bird v. Boldue, 1 Mo. 701; Moffit v. Ingham, 7 Dana, 495.)

II. The administrator of C. Zelina Fremon could not undertake to set aside the deed in question. The conveyance, however fraudulent and void as to her creditors, was valid and binding as against her and her heirs. (George v. Williamson, supra; McLaughlin v. McLaughlin, supra; 7 Johns. 160.)

III. Appellants are entitled to have the colorable title, under the fraudulent conveyance to the respondent LeBeaume, set aside by a decree of a court of competent jurisdiction in an equitable proceeding. (Lillard v. McGee, 4 Bibb, Ky., 165.)

Garesche, and Bakewell & Farish, for respondents.

I. The Circuit Court had no jurisdiction to grant the relief sought. No order of sale or execution against the estate of a deceased person can issue from that court; the Probate Court alone has such authority.

II. As an application for a scire facias, to revive the lien of a judgment, the petition was defective in not making the administrator of Zelina Fremon a party. (Gen. Stat. 1865, p. 637, § 15.)

III. As a bill in equity, to set aside a conveyance for fraud, the bill was defective in this, that it showed that the lien of appellants' judgment had expired, and they were in no position to invoke a court of equity to set aside the conveyance.

CURRIER, Judge, delivered the opinion of the court.

This is a petition in equity filed by the plaintiffs, who are creditors of C. Zelina Fremon, deceased, against Louis A. LeBeaume, trustee of said deceased, and also of her children, who are joined with said LeBeaume as co-defendants. The object of the petition is to subject certain real estate described therein to the payment of the indebtedness of said C. Zelina Fremon to the plaintiffs, said indebtedness having been reduced to judgment in the lifetime of said Fremon. This judgment was duly allowed and classed by the Probate Court as a claim against her estate. The petition charges that said real estate was acquired with the funds of said deceased, and that the title thereto was, in fraud of the rights of her creditors, vested in said LeBeaume in trust for her use while she should live, and after that for the use and benefit of her said children. The petition also shows that her estate proved insolvent, and that all the assets which came to the hands of the administrator have been fully administered upon; that the administration has been closed, leaving a balance of $702.21 due the plaintiffs on the said claim, classed and allowed as aforesaid.

The original judgment in favor of the plaintiffs was rendered in the month of April, 1863. The present suit was commenced October, 1868. The petition is demurred to mainly on the alleged ground that it does not state facts sufficient to constitute a cause of action, or to warrant the relief prayed for. It is supposed to be defective in this particular, because it shows upon its face that the lien of the plaintiffs' original judgment has expired. This objection appears to be based upon the idea that the real estate in question can not be subjected to the plaintiffs' claim, or to judgment in a chancery proceeding, without the basis of a legal lien to found the proceedings upon; or, to state the proposition in more general terms, it would seem to be the view of the defendants' counsel that a creditor, before he can rightfully question in chancery the propriety of the disposition which his debtor may have made of his property, must first fasten and and maintain upon such property a valid lien at law.

It is doubtless true that the creditor in this class of cases, before resorting to chancery, must first exhaust his legal remedies, whatever they may be. In doing so he may create a lien upon the property sought to be subjected. The creation of such lien is, perhaps, an ordinary incident to such prelimmary proceedings at law. But the lien is the incident, and not the object, of the proceedings. The object is, in the first place, by judgment, to reduce the creditor's claim to certainty--to show that he is in fact a creditor. Unless the party shows that, he has no concern with his debtor's supposed frauds. It is therefore necessary for a party claiming to be a creditor, to show by appropriate proceedings at law that he is in fact so, before a court of chancery will, at his instance, enter into an investigation of acts and transactions alleged to be fraudulent as to creditors. Nor will a court of chancery interfere except in the last resort, when it is shown that the creditor has exhausted his legal remedies. It is therefore usually necessary for the creditor not only to reduce his claim to judgment, but to seek the enforcement of such judgments by execution. Ordinarily, therefore, the creditor must show the issuance of an...