Mittelburg v. Harrison

• Citation: 11 Mo.App. 136
• Parties: ARTHUR MITTELBURG, Appellant, v. EDWIN HARRISON, Respondent.
• Decision Date: 15 November 1881
• Court: Court of Appeal of Missouri (US)

11 Mo.App. 136

ARTHUR MITTELBURG, Appellant,

v.EDWIN HARRISON, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 15, 1881.

1. The question whether a voluntary conveyance is fraudulent must be determined from all the circumstances.

2. In order to set aside a prior voluntary conveyance at the suit of a subsequent creditor, actual fraud must be proved.

3. A voluntary conveyance of an equity of redemption in premises so covered by prior encumbrances as that no benefit could possibly inure to a subsequent creditor, will not, in the absence of proof of actual fraud, be set aside at the suit of such a creditor.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

E. P. JOHNSON, with whom are HAYDEN & GLOVER, for the appellant:

A voluntary grantee can take nothing under the conveyance as against creditors of the grantor, in whom there is a resulting trust.-- The State to use v. Jacob, 2 Mo. App. 183; Curtis v. Leavitt, 15 N. Y. 9. In order to set aside a fraudulent voluntary conveyance actual notice to the donee of the fraudulent intent need not be shown.-- Fisher v. Lewis, 69 Mo. 629; Lackland v. Smith, 5 Mo. App. 153; Payne v. Stanton, 59 Mo. 158.

CLINE, JAMISON & DAY, for the respondent:

There is nothing in this record showing any equity in plaintiff, or that could entitle him to a decree.-- Payne v. Staunton,59 Mo. 158; Read v. Livingston, 3 Johns. Ch. 501; Sexton v. Wheaton, 8 Wheat. 229. His remedy is at law by ejectment, and after obtaining possession, his equitable remedy to dispel a cloud, set aside and annul a fraudulent deed and to perfect his title could be maintained.-- Keane v. Kyne, 66 Mo. 216; Devonsher v. Neuenheim, 2 Sach. & Lef. 208; Welby v. Duke of Rutland, 2 Bro. P. C. 39; Shepley v. Rangely, Daveis, 242; Von Puhl v. Penn, 31 Mo. 334; Tichnor v. Knapp, 6 Oreg. 205.

BAKEWELL, J., delivered the opinion of the court.

This is a proceeding in equity in the nature of a creditor's bill to set aside a conveyance of real estate by one George A. Magwire to defendant Harrison, and to subject the property to sale for the satisfaction of the plaintiff's judgment against Magwire. The answer is a general denial; it also sets up that defendant is the sole owner, at law and in equity, of the land in question.

The land in question is a parcel fronting two hundred and sixty-one feet on the east line of Second Street, at the corner of Webster Street in St. Louis, and is the western half of city block number 292. It appears that it lies in the Brazeau tract of four by four arpens. To this tract John Magwire, the father of George A. Magwire, laid claim, and after litigation he was put in possession. During the litigation, John Magwire, the father, had obtained advances of large sums upon his claim from defendant's father, from Filley, and from defendant himself, under an agreement that they were to be reimbursed from the land when recovered. Magwire, during the litigation, had conveyed interests in the tract to sundry persons, retaining, as was supposed, an interest of over fifty per cent. After recovery by John Magwire in 1873, partition was had; and by agreement defendant Harrison purchased at partition sale under an agreement to sell and divide the proceeds among the owners according to their respective interests as found by the decree in partition. After this conveyance to Harrison it was first learned by Harrison that John Magwire had already conveyed away his interest in the tract in controversy in this suit. After the legal title had been conveyed to Harrison in the four by four tract, in the partition proceedings, on June 27, 1875, John Magwire made a declaration of use in favor of Harrison to the extent of his indebtedness to him and to his father's estate, which was about $150,000, and on April 4, 1876, Magwire conveyed to Harrison and Filley his entire interest in the land for $235,000, being at the rate of $400,000 for the entire tract. This was in part payment of his indebtedness to Filley, to Harrison, and to the Harrison estate.

The tract in controversy in this suit had been conveyed by John Magwire to Montgomery Blair, in December, 1866; the consideration named in the deed being $1,000. On May 10, 1869, Blair and wife conveyed this piece of land to George A. Magwire, the consideration named in the deed being $6,525. George A. Magwire, on the same day, executed a deed of trust back for part of the purchase-money, the sum of the notes secured being $4,525. On July 23, 1874, George A. Magwire executed a deed of trust on the property in question in this suit to secure to one Beal $5,000. In 1874 and 1875 judgments to the amount of over $1,500 were obtained against George A. Magwire. On July 2, 1875, George A. Magwire, being then insolvent, covered with debts, and having no other property, made the conveyance attacked in this proceeding, by which he transferred this property to defendant Harrison. The consideration named in the deed is $100, but no money passed. Shortly after this, George A. Magwire became indebted to plaintiff in the sum of $1,100. George A. Magwire died in 1878, insolvent, leaving no estate. Plaintiff obtained judgment against Magwire in February, 1878. Execution was returned nulla bona. There was evidence that large amounts of taxes, general and special, had been allowed to accumulate against the Brazeau tract, and that Harrison had been obliged to pay over $22,000 to settle these tax claims in the interest of those for whom he held the Brazeau tract. After the death of Magwire, under foreclosure of the deed of trust of Magwire to Montgomery Blair, which Harrison had acquired, he purchased one hundred and twenty feet of the premises described in the petition, leaving one hundred and forty-one feet unsold.

Defendant Harrison, being examined as a witness for plaintiff, stated that this deed was made to him without any understanding whatever with either George or John Magwire, that he was to hold it in trust for either of them; that nothing was said about it between him and George Magwire; that the conveyance was made under the general understanding with John Magwire to convey all his fractional interest in the Brazeau tract, and to perfect the title in Harrison for those for whom Harrison held it under the agreement mentioned above; that the conveyance was to clear up title; that no...