Mullen v. Hewitt

• Decision Date: 31 March 1891
• Citation: Mullen v. Hewitt, 15 S.W. 924, 103 Mo. 639 (Mo. 1891)
• Parties: MULLEN v. HEWITT et al.
• Court: Missouri Supreme Court

15 S.W. 924

103 Mo. 639

MULLEN v. HEWITT et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1891.

FRAUDULENT CONVEYANCE — BILL TO SET ASIDE.

1. To enable a complainant to maintain a bill to set aside conveyances as fraudulent, and subject the property to the payment of his demand, his claim must be in the form of a judgment on which execution may issue; and where his judgment has become dormant by the lapse of time, and no scire facias will lie to revive it, and no execution can be issued to enforce it, a demurrer to the bill must be sustained.

2. Where, in an action to set aside conveyances as fraudulent, it appears that plaintiff has permitted his judgment to become dormant, that only one execution has been issued thereon, and that 10 years before the suit brought, a demurrer to his bill will be sustained. Until he has brought suit on the judgment, and renewed it, issued execution, and levied it on the legal or equitable interest of defendant, he has not exhausted his legal remedies.

3. A bill against a judgment debtor and the grantees in a number of distinct conveyances of separate pieces of property, alleging that they were each made to cover up the defendant's interest therein, and to prevent the collection of plaintiff's judgment, but showing no common purpose or design, is demurrable as multifarious.

Appeal from St. Louis circuit court.

On 15th February, 1888, appellant filed his petition in the circuit court, city of St. Louis, against Charles Hewitt, M. A. Wolff, F. G. Flanagan, J. H. Douglass, J. W Grant, J. I. Percy, and F. L. Bixler. "For cause of action plaintiff avers that he, with one Lucy Muller, on 6th day of December, 1877, recovered judgment in the circuit court of the city of St. Louis against defendant Charles Hewitt for $3,878.10; that at the February term, 1878, an execution issued on said judgment, addressed to sheriff of St. Louis city, against the property of said Charles Hewitt; that, at the April term thereafter, said execution was returned by said sheriff wholly unsatisfied; that in May, 1887, a scire facias was issued to revive said judgment, and afterwards said judgment was duly revived by the circuit court of the city of St. Louis; that the said judgment, and every part thereof, still is and remains wholly unsatisfied; that plaintiff, Alexander J. Mullen became, and is now, for value received, the absolute owner of said judgment. Plaintiff further avers that at no time since the rendition of said judgment, nor at the present time, has defendant Charles Hewitt owned property in his own name subject to execution, but to all appearances was and is wholly insolvent, but that as plaintiff is informed and believes, and so states the fact to be, that from some time prior to the rendition of the said judgment defendant Charles Hewitt has been the beneficiary of large and valuable real estate in the city of St. Louis, but dealing therein by means of what are commonly known as `kites,' — that is to say, straw men, who had no interest therein, — and other persons who would hold property in secret trust for him, and, by means of sundry false and fraudulent mortgages and representations, lend their aid and assistance to enable said defendant Charles Hewitt to cover up, conceal, and fraudulently convey his property to hinder and delay this plaintiff in the collection of his judgment. And plaintiff avers that in furtherance of this fraudulent scheme, and with full knowledge of said defendant Charles Hewitt's indebtedness to plaintiff, and of his ostensible insolvency, and in order to aid him, the said Hewitt, in covering up his property, that he might hinder and delay this plaintiff in the collection of his judgment, defendants Marcus A. Wolff and said Charles Hewitt, on, to-wit, March 21, 1887, purchased from one Giddings a valuable piece of real estate in the city of St. Louis, paying therefor a consideration of about thirty thousand dollars, ($30,000,) that defendants Wolff and Hewitt caused the same to be conveyed to one James H. Douglass, a mere straw man or kite, who had no interest therein, and who thereafterwards, on, to-wit, April 1, 1887, they caused to execute a deed of trust on said property, which purports to secure a note of thirty-five thousand dollars, ($35,000,) no money having ever passed at the inception of said note, and it having been given for no value whatever, but made and executed for the purpose and with the intent of covering up, defrauding, hindering, and delaying this plaintiff as aforesaid; that on said April 7, 1887, the said Wolff and Hewitt also caused said kite, James H. Douglass, to convey the equity in said property to Marcus A. Wolff, defendant; that afterwards, and on, to-wit, May 14, 1887, the said Marcus A. Wolff conveyed the said property to Hon. John W. Noble, who, in consideration therefor, conveyed to Marcus A. Wolff the following described real estate, [here describing it.] And plaintiff avers that defendant Marcus A. Wolff holds and received the interest of said Charles Hewitt in said premises, in secret trust for his use and benefit; that the same is no other than and represents the interest of defendant Hewitt in the original investment in the name of the said kite, James H. Douglass; that plaintiff is unable to state the exact interest of the said defendant Hewitt in said property; that since the conveyance to him the said Marcus A. Wolff has been collecting the rent, issues, and profits from the said premises, and does stand seised of said premises, and of the interest of the said Hewitt therein, in secret trust for his use and benefit, and in furtherance of the said scheme of the said Charles Hewitt to cover up, defraud, hinder, and delay this plaintiff in the collection of his said just judgment. And plaintiff further avers that, in furtherance of this fraudulent scheme, and with full knowledge of said defendant Charles Hewitt's indebtedness to plaintiff, and of his ostensible insolvency, and in order to aid him, the said Hewitt, in covering up his property, that he might hinder and delay this plaintiff in the collection of his judgment, defendant Francis G. Flanagan, agreed with the said Hewitt, and does stand seised in secret trust of an undivided one-half interest in the following described property, [here describing it.] And plaintiff further avers that defendant Charles Hewitt, in conjunction with others, whose names plaintiff is unable to give, and in furtherance of his fraudulent scheme to cover up his property, so that he might hinder and delay this plaintiff in the collection of his just judgment, caused one James Commiskey to convey to defendant James H. Douglass, who for no consideration whatever pretended to convey to defendant James W. Grant, and who, by a mere sham deed, conveyed to defendant Franklin L. Bixler, the following described property, [here describing it.] Plaintiff avers that the defendant Charles Hewitt is interested in said property, to what extent he is unable to say; that the said defendant James Douglass was a mere kite or straw man, and is now seised in secret trust for the use and benefit of the said Hewitt in said property; and that, if the said James W. Grant conveyed any interest therein whatever to the said defendant Bixler, the said Bixler is a mere kite or straw man, and stands seised of said property for the interest of the said defendant Hewitt therein, in secret trust for the use and benefit of the said Hewitt, and in furtherance of his fraudulent scheme to cover up, hinder, and delay plaintiff in the collection of his just judgment. And plaintiff further avers that defendant Charles Hewitt, in conjunction with others, whose names plaintiff is unable to give, and in furtherance of his fraudulent scheme to cover up his property, so that he might hinder and delay this plaintiff in the collection of his just judgment, caused defendant Marcus A. Wolff to convey to defendant James W. Grant, who by a mere sham deed conveyed to defendant Franklin L. Bixler, the following described property, [here describing it.] Plaintiff avers that defendant Charles Hewitt is interested in said property, to what extent he is unable to say; that defendant James W. Grant is a mere kite or straw man, paid nothing for said property, and has no interest therein; that the said Bixler is a mere kite or straw man, and paid nothing for said property, and has no legal title thereof, and the interest of the said defendant ...