Ober v. Howard

• Citation: 11 Mo. 425
• Parties: OBER ET AL. v. HOWARD ET AL.
• Decision Date: 31 March 1848
• Court: United States State Supreme Court of Missouri

11 Mo. 425

OBER ET AL.

v.HOWARD ET AL.

Supreme Court of Missouri.

March Term, 1848.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

MOREHEAD, for Appellants.

1st. The deed of trust to Adams & Co., is void in fact ab initio. First, because made in fraud of creditors. Second, because the possession did not pass with the conveyance, but vendor retains possession during life, unopposed by vendees, claiming as his own, paying taxes, and expending large sums in building upon the lot, after the date of the deed of trust. 1 Desaussere, 557.2nd. The children representatives, as well as creditors, can impeach the deed. 7 Gill & Johns. 132; 1 Hen. & Munf. 70; 1 Wash. 164. 3rd. There is equity in the bill, independent of the deed of trust, and complainants entitled to alternate decree. First, to settle the whole estate, to pay the debts out of the whole estate, and to include in the settlement the amount expended upon the trust lot. Second, to set aside judgment in partition, allot dower, and limit the trust deed to lot conveyed by John P. Hortiz. 4th. The validity of the trust deed invalidates the will, because he believed when he made the will that the property was his. 5th. The answer and cross-bill of the widow was improperly disregarded. 6th. The bill is not multifarious. 9 Mo. R. 293; 20 Pick. 368; 5 Paige, 137; Halstead's Digest, 168.

FREMON & REBER, for Appellees.

1st. That the conveyance to Adams, in trust for Marie and Emily, children of Joseph Navalles, was valid against the grantor and his heirs or devisees, even admitting it to be void as to his creditors. 1 Story's Eq. 364-5, and cases cited; 4 Mo. R. 25. Cases cited by appellants are not cases were the grantors in the fraudulent conveyances were the authors of the fraud, but they are cases which show that the grantors were the victims of the cheat, and in such cases it is admitted that the conveyance may be set aside, either by the party or his heirs. The case of Stewart v. Iglehard, 7 Gill & Johns. 137, cited by appellants, shows that Marie Stewart was the victim, and not the inventor or participator in the fraud intended, and therefore her heirs were properly enough allowed to disregard her deed. 2nd. As to Adams, there is clearly a misjoinder of parties, for an examination of the deed to him will show, that the title to the lot conveyed, did not rest in him a moment, but immediately passed to and vested in Marie and Emily, the children of the grantor. 3rd. The bill is multifarious in joining distinct matters in the suit, in which some of the parties have no interest. The rule on this subject is one of convenience, and no inflexible rule governs the courts, each case being determined, to some extent, on its own me its.

SCOTT, J.

This is a suit chancery by a bill, which states in substance, that in 1841, J. Navalles, the father of Lousia Ober, the wife of M. Ober (who is a plaintiff), and also of E. Navalles, a minor, who by her next friend is the other plaintiff, died in 1841, leaving to other daughters, Marie and Emily, who were respectively married to Louis Howard and Louis Gouise, who with the wife of the said J. Navalles, with others, are made defendants to the bill. That the father, J. Navalles, before his death, and before the birth of the plaintiffs, was sued in an action of trespass on the case, and being fearful of a recovery of heavy damages against him, was induced to convey to a trustee for the use and benefit of his two daughters, the said Marie and Emily, who were then in existence, a certain lot of ground in St. Louis. That Navalles died possessed of other property, on which the two daughters last mentioned, with their husbands, had entered, and received the rents and profits, which amounted to a considerable sum. That the deed of trust was made for a fraudulent purpose. That the suit, whose pendency had induced Navalles to execute the deed of trust, resulted favorably to him. That from that time until his death he continued in the possession of the estate conveyed in trust, claimed it as his own, and made valuable improvements on it. That his two daughters, the cestui que trusts, though of competent age, never interposed any claim to the trust property. That Navalles, conceiving the property to be his own, devised the same, and all his estate, real and personal (except a lot and slave), after the death of his wife, to all his children, to be...