Pepper v. Carter

• Decision Date: 31 July 1848
• Citation: 11 Mo. 540
• Parties: PEPPER v. CARTER & MINOR.
• Court: Missouri Supreme Court

11 Mo. 540

PEPPER

v.CARTER & MINOR.

Supreme Court of Missouri.

July Term, 1848.

ERROR TO PIKE CIRCUIT COURT.

BUCKNER & WELLS, for Plaintiff.

I. The execution under which the sale of lot No. 76 was made, was not satisfied by the receipt of Hough. 1. A receipt can be explained by parol evidence. 9 Mo. R. 63. The evidence of the sheriff and McQueen shows that Hough consented that McQueen should have the benefit of his execution, and although he gave his receipt to the sheriff in full of the execution, it was the understanding between the parties that the balance of the execution should be transferred to McQueen, and be collected for his benefit. 2. Hough authorized McQueen to make this arrangement with the sheriff. His subsequent conduct is standing by and seeing the property sold under his execution, and making no objection to the sale, and his subsequent written authority to the clerk to issue the third execution, prove conclusively that this was the arrangement and understanding between him and the sheriff. 3. Hough's execution could not be satisfied without leaving his debt to McQueen unpaid, and the evidence is conclusive that it was satisfied by the sheriff at the time of the settlement.

II. The second point is, whether Carter's conveyance to Minor is fraudulent and void as against existing creditors. It is admitted that Hough's debt was in existence prior to the gift to Minor. Carter was largely indebted at that time, and previously--frequently sued in the justice's courts--heavy judgments against him long prior and up to the time of Minor's deed--and most, if not all, his property mortgaged; and in the end, he becomes hopelessly insolvent.

III. The court erred in excluding the evidence of McQueen as to Carter's pecuniary circumstances previous to the burning of the steam-mill and the alleged verbal gift to Minor. It was in rebuttal to the evidence of defendants on that point, and to which no reference by the plaintiff's witnesses had been made in their examination. It is insisted that all the evidence of defendants in relation to the verbal gift has no connection with the case. Minor could not have obtained a specific execution of that agreement or gift by Carter. He being a volunteer, ought he to be permitted to enforce it against existing creditors? 2 Story's Eq. 113. If Minor could have any claim for his improvements, the pleadings are not in a condition to enable him to obtain such relief. It is affimative relief, and would require a cross-bill. Story's Eq. Pl., 413. But he is particeps fraudis. His improvements were put on the lot after he had notice in different modes that Carter had no legal right to put his property beyond the reach of his creditors, and that he (Carter) was insolvent. He must have acted bona fide before he could claim the benefit of his improvements.

G. PORTER, for Defendants.

1. The judgment was satisfied before the sale (under the execution) was made under which the plaintiff claims, and consequently the sale was void. Garth v. McCampbell, 10 Mo. R. 154; Reed v. Pryor & Staats, 7 Johns. 426. A judgment cannot be satisfied for one purpose and left open for another. 4 Wend. 474.

2. Though Carter was indebted when he transferred the lot to Minor, his son-in-law, the circumstances all go to show that there was no fraudulent intent-- and though Carter was then indebted, his property was worth at a fair estimate, much more than his debts amounted to, and the lot bore no proportion to the residue of his estate, therefore, according to the doctrine of modern decisions, the gift was not void as against creditors.

3. The evidence of McQueen as to Carter's circumstances in April, 1841, was rightly excluded by the court for the reason given, because it was an attempt to go again into an examination in chief--the same matter having been testified about by plaintiff's witness--but if the other points, or either of them, be well taken, this last becomes immaterial to be looked into.

SCOTT, J.

This was a bill in chancery filed by Pepper, the complainant, against Carter & Minor, the defendants. The bill substantially charges that the complainant on the 12th April, 1844, purchased for ten dollars lot No. 76, in the town of Clarksville, in Pike county, at a sheriff's sale, under an execution against himself, the defendant, Carter and others, in favor of W. S. Hough. That the sheriff executed to him a deed for the lot. That previous to said sale, on the 12th September, 1842, the said lot was conveyed by the said defendant Carter, to the said defendant Minor, for the nominal consideration of one dollar. That the said Minor was the son-in-law of the said Carter, and the consideration of the deed was not the pretended sum of one dollar, but natural love and affection. That at the time of the said conveyance, the said Carter was in failing circumstances, and had incumbered all his property, real and personal, in favor of his creditors, That at the time of the conveyance, the said Carter was hopelessly insolvent and was wholly unable to meet his liabilities. That the conveyance was made to defraud creditors and purchasers, and is therefore void. That Minor is in possession of the said lot and refuses to surrender it. The bill prays that the conveyance to Minor may be canceled and the title to the lot vested in the complainant, and for general relief.

The answer of the defendant, Carter, does not deny the sale of the lot by the sheriff and the purchase thereof by complainant as stated in the bill, but requires proof thereof. It admits the conveyance of the lot (a vacant one) to Minor, his son-in-law, who resided in Clarksville, for natural love and affection. It denies that respondent considered himself in failing circumstances, or that he could be fairly considered so. It admits, that he was a good deal in debt, and owed W. S. Hough jointly with the complainant and others who composed a partnership, the note on which the judgment was rendered under which the lot was sold, and other debts. It asserts that the respondent had a large amount of property, and a considerable amount of debts due him; that he considered himself at the time of the conveyance of the lot entirely responsible for his debts, and if a reasonable price could have been realized for his property he would have been able to meet all his engagements, but it unfortunately happened that his property was sacrificed at forced sales, it consisting mostly of real estate. All fraud in the conveyance is denied.

Minor, the defendant, files an answer, which is afterwards amended. In relation to the sale of the lot by the sheriff, and the indebtedness of Carter, his father-in-law, its statements are substantially the same as those contained in the answer of his co-defendant. In addition to what is contained in Carter's answer in relation to the conveyance of the lot to Minor, it is asserted that as early as May, 1841, there was a parol gift of the lot to Minor: that at the time of said gift, the lot was wholly unimproved, and that in the interval between the gift and the conveyance, considerable improvements were made on the lot, and a contract entered into for the building thereon of a two story log house, which has been since completed. That a well was dug, and that...