Ownby v. Ely

• Decision Date: 31 October 1874
• Citation: 58 Mo. 475
• Parties: JOHN W. OWNBY, Appellant, v. DAVID A. ELY, Respondent.
• Court: Missouri Supreme Court

58 Mo. 475

JOHN W. OWNBY, Appellant,

v.DAVID A. ELY, Respondent.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Macon Circuit Court.

Harrington & Cover, with D. S. Hooper, for Appellant.

I. It was the duty of Ely to file an inventory of the property under oath, which came into his hands. (W. S., 151-2, §§ 2, 3.)

II. The ruling of the court below makes Ownby pay what Ely loses by his fraudulent acts. (Allen vs. Berry, 50 Mo., 90.)

Ellison & Ellison, for Respondent.

WAGNER, Judge, delivered the opinion of the court

This was a proceeding in the nature of a bill in equity, the object of which was to declare a trust upon certain real estate, and have the defendant held as a trustee for the plaintiff.

The petition alleged that in 1866 plaintiff and one Lee purchased of I. B. Dodson the land in question, and paid for the same, and that Dodson executed and delivered to them a warranty deed therefor; that in 1867, plaintiff having been sheriff and collector of Adair County, became defaulter to the county and State, and, desiring to secure the indebtedness, he made a voluntary assignment to the defendant of all his property both real and personal, including his interest in the land in controversy; that defendant accepted the trust, but, through fraud, designedly failed and neglected to have the property inventoried and appraised as required by law; that in furtherance of this fraud, on the 27th day of June, 1868, he made a pretended sale of plaintiff's interest in the land, without having it inventoried or appraised, and without obtaining an order of court authorizing him so to do, to one Brown, for the sum of one hundred dollars, when the property, at the time, was worth two thousand dollars; that he executed to Brown a deed for the land, and in two days thereafter received a quit-claim deed from Brown to himself for the said land for the consideration of four hundred dollars; that at the same time defendant and Dodson were colluding and confederating together to obtain from Lee the deed Dodson had made and delivered to plaintiff and Lee, which deed had never been put upon record, and, after the same was secured, they refused to deliver it to the plaintiff, and that the defendant agreed to pay Dodson one-half of the value of the land, if he would make him a warranty deed to all the land, which Dodson did, accordingly, on the same day that Brown made his deed to the defendant, and that defendant recorded both of the deeds and claimed the land as his own; that afterwards, at the May Term, 1869, of the Adair County Circuit Court, defendant, as assignee of the plaintiff, made a final settlement, and was discharged by the court, without accounting for the property, and that he refuses to convey the same to the plaintiff. The answer denied all the allegations stated in the bill, and averred that defendant bought the property in good faith, and that he applied the proceeds to the benefit of plaintiff's creditors.

These averments were denied in a replication.

From the record introduced in the matters of the proceedings in the assignment, it appears, that the defendant did not inventory or appraise the property, nor did he procure an order of court directing it to be sold. Although the statute requires all these things to be done, (Wagn. Stat., 151-2, §§ 2, 3; Id., 156, § 34,) yet their omission by the assignee could not destroy the rights of the creditors under the assignment. The power to sell and convey without an order of court might not exist, but that would not affect the trust upon the property, if the question was raised by the creditors or those who were lawfully entitled thereto. But there are no creditors here either presenting or contesting any claim.

The evidence in the case shows, that Lee purchased the land, in conjunction with the plaintiff, from Dodson for the sum of six hundred dollars, and received a general warranty deed therefor. The interest of Lee was one-half, and of the plaintiff the other half. Lee kept the deed in his possession about one year, and never put it on record; he then sold his interest back to Dodson, and delivered to him the deed he had received to himself and plaintiff, instead of making to him a conveyance for his half.

The facts clearly show that plaintiff paid all the consideration money but about fifty dollars (forty-nine is the sum found by the court), and this balance was afterwards paid by the defendant. The testimony of Dodson is explicit, that, in the sale of the land to defendant, although he...