Oldham v. Wade
| Decision Date | 02 February 1918 |
| Parties | PASCAL W. OLDHAM et al., Appellants, v. HARVEY E. WADE et al., Appellants |
| Court | Missouri Supreme Court |
Editorial Note:
This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.
Appeal from Pettis Circuit Court. -- Hon. Hopkins B. Shain, Judge.
Reversed and remanded (with directions).
Charles E. Yeater for plaintiffs.
(1) The sheriff in his deeds recites due levy and advertisement and in any case of a sheriff's sale of land under execution the return of the sheriff cuts no figure whatever, and it is not necessary to the validity of the purchase that he make a correct return or any return whatever, and the omission of the sheriff in his return on the execution to describe in detail the property levied on, or a return contradictory of his deed, does not affect the validity of his deed aforesaid or the title of plaintiffs thereunder. Simmons v Affolter, 254 Mo. 173; Bray v. Marshall, 75 Mo 329; Buchanan v. Tracy, 45 Mo. 438. (2) Mere inadequacy of price alone, except in rare cases, will not vitiate an execution sale, but even if such inadequacy alone raises a presumption of fraud, that presumption is rebutted here where the inadequacy was due to the fraudulent conveyance by defendants to defeat creditors of the property sold, and was further due to the fact that the attorney for defendants was present when the sheriff's sale was cried and warned all bidders that Mr. Wade and not the execution creditor owned the land. Mangold v. Bacon, 229 Mo 479; Martin v. Castle, 193 Mo. 184; Knoop v. Kelsey, 121 Mo. 649; Mangold v. Bacon, 237 Mo. 520; Bradshaw v. Halpin, 180 Mo. 672; Rinehart v. Long, 95 Mo. 401. (3) The plaintiffs agreed that the trial court, after declaring the conveyance from Mrs. Wade to her husband of her share in her father's land and the subsequent deed to Foster were fraudulent and void, and after denying defendants' claim that the sheriff's deed was invalid, erred in setting aside such deed because plaintiffs did not attack the fraudulent transfer in equity first and because of inadequacy in the bid, but further contend that the judgment should have annulled such fraudulent conveyances and vested title in the plaintiffs. Garrett v. Wagner, 125 Mo. 463; Welch v. Mann, 193 Mo. 326; Ryland v. Callison, 54 Mo. 513; Zoll v. Soper, 75 Mo. 461. (4) Since defendants admit the land was worth from $ 4500 to $ 5000 and the lots $ 600 and that they were exchanged for a $ 2700 note and $ 1200 paid in small amounts during a period of several years, which was from $ 1200 to $ 1700 less than the land was worth and enough to largely pay plaintiffs' judgment, the law subjects such excess to a trust for the use of creditors for whose benefit a lien can be declared on the land in such cases as this, and so it was expressly ruled in Bank v. Winn, 132 Mo. 89. (5) The court did not err in setting aside the deeds in question as fraudulent to creditors. (6) The question whether Mr. Wade knew that the purchase price of lots had been paid was not res adjudicata at the trial in Jackson County, because the record of the judgment entry shows that the plaintiffs took a nonsuit without leave as to him, after a declaration of law by the court sitting as a jury, and dismissed the second count of their petition so as to enable them to raise the issue in a subsequent suit. Sec. 1980, R. S. 1909; Wood v. Nortman, 85 Mo. 304; McClure v. Campbell, 148 Mo. 112; Weithaupt v. St. Louis, 158 Mo. 659; Carter v. O'Neil, 102 Mo.App. 391. Mr. Wade is privy in estate to Mrs. Wade and is bound by the judgment in the Jackson County suit. Cooley v. Warren, 53 Mo. 166; State ex rel. v. St. Louis, 145 Mo. 552; Carthage ex rel. v. Wessner, 116 Mo.App. 121; Crispen v. Hanavan, 50 Mo. 418; Young v. Byrd, 124 Mo. 590. (7) Courts scrutinize closely and with suspicion conveyances between husband and wife where creditors are concerned. Cole v. Cole, 231 Mo. 255; Ice Co. v. Kuhlman, 238 Mo. 697; Benne v. Schnecko, 100 Mo. 257; Gruner v. Scholz, 154 Mo. 415; Bank v. Fry, 216 Mo. 45. A clear sweep of all of grantor's property raises a presumption of fraud, particularly in this case, where a wife conveys all her visible real property to her husband in exchange for invisible property. Gordon v. Ritenour, 87 Mo. 60; Segers Sons v. Thomas Bros., 107 Mo. 635. Every person is presumed to intend the necessary consequences of his acts, and if they necessarily delay, hinder or defraud creditors then the law presumes they were done with a fraudulent intent; but in this case where the husband and wife knew of the latter's indebtedness, and the wife conveyed all her visible landed property to her husband for alleged invisible property, namely a note for $ 2700 and $ 1200 cash, which latter both admit was not paid at the time nor all of it paid for several years, some of it not being paid until after this suit was filed, and the wife thinking some of it still unpaid at the trial, the presumption of fraud is conclusive. Bank v. Buck, 123 Mo. 154; Tootle & Co. v. Lysaght & Co., 65 Mo.App. 142. Mrs. Wade was a judgment debtor and her intent was to hasten to convey the Pettis County land out of her name for fear plaintiffs would discover and levy on it, which she did two months and twelve days after she inherited it from her father, and her husband knew of that fact and although he may have paid full value for the land such knowledge of his wife's intent renders the transfer fraudulent and void as to creditors. Sexton v. Anderson, 95 Mo. 379; Gust v. Hoppe, 201 Mo. 300; Kurtz v. Troll, 175 Mo. 506. Mrs. Wade's admission that the cash part of the consideration was not paid for years, some of it after this case was begun, and some still unpaid in her judgment at the trial of this case, renders the transfer fraudulent and void to plaintiffs as judgment creditors. Dougherty v. Cooper, 77 Mo. 532; Kurtz v. Troll, 175 Mo. 511. At the least Mr. Wade knew enough of his wife's circumstances to put him on inquiry when he knew she was making a clean sweep of all her visible property in exchange for invisible property of less value, and inquiry would have disclosed her object if he did not know it, and his failure to make inquiry charges him with notice of the fraud. Rupe v. Alkire, 77 Mo. 641; Roan v. Winn, 93 Mo. 511; Leavitt v. La Force, 71 Mo. 356; Bank ex rel. v. Purcell, 131 Mo. 317; Adams v. Gossom, 228 Mo. 583.
A. W. Gray and G. W. Barnett for defendants.
(1) The deed from the sheriff of Pettis County to the land in question, and under which plaintiffs claim title, is absolutely void and conveys no title to plaintiffs for the reason that there was no levy on the land in question under the execution issued from the circuit court of Jackson County. The return of the sheriff on the execution under which the sale to plaintiffs was made does not show that this or any other land was seized or levied upon; no property is described. While a levy may be made without the officer going upon the land, yet a description of the land seized must be indorsed on the writ by the officer, showing what land has been seized and appropriated for the debt. Duncan v Matney, 29 Mo. 368; 17 Cyc. 1092. The return must describe the land with as much certainty as a deed. Henry v. Mitchell, 32 Mo. 512. The judgment being in another county, was not a lien on the land in Pettis County, and hence the validity of the sale depends upon a valid levy. Sec. 2124, R. S. 1909. But plaintiffs, recognizing that the return did not show a proper levy upon the land, sought to cure this by asking leave to amend the return on the trial in the Pettis County Court. Whether the trial court did or did not permit the amendment is not quite clear, but it is immaterial whether the court permitted an amendment or not, as the trial court in this case had no jurisdiction over the execution which was issued from the Jackson County Circuit Court. If the amendment could be allowed at all, it could only be done by permission of the Jackson County Circuit Court, from which the execution issued. Sec. 1861, R. S. 1909; Bunton v. Adams, 65 Mo.App. 6; State ex rel. v. Rayburn, 22 Mo.App. 303. (2) The plaintiffs acquired no title under the sheriff's deed for the further reason that the price paid, one hundred dollars, for a farm worth about forty-five hundred dollars, was so inadequate as to outrage the conscience and shock the moral sense. This alone is sufficient ground for setting aside the sale and declaring that the plaintiffs had no title thereunder. Mangold v. Bacon, 237 Mo. 496; Guinn v. Donnell, 201 Mo. 173. The court therefore did not err in setting aside the deed to plaintiffs, but did err in charging the defendant Harvey E. Wade's land with the judgment and costs rendered in the circuit court of Jackson County against defendant Lucile Wade, for the reason that this is not a suit to collect this judgment, but is to recover the land, based upon an alleged valid title. Neither party asked the relief granted by the trial court, and both parties are repudiating any such relief. The plaintiffs do not ask a lien on said land for their judgment, and are appealing from the judgment of the lower court in granting such relief. Defendant Wade does not ask any such relief, but this is a suit where both parties are claiming title to the land, and it is a suit for the land and not for the money. (3) In a case of this kind, the plaintiffs must recover the land or nothing. They cannot recover on their Jackson County judgment in this form of action, and have it declared a lien on the land. Garrett v. Wagner, 125 Mo. 450. (4) While it is true that when a court of equity once acquires jurisdiction for any purpose, it will retain such jurisdiction for the purpose...
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