Perry v. Calvert

• Decision Date: 31 January 1856
• Citation: 22 Mo. 361
• Parties: PERRY AND OTHERS, Appellants, v. CALVERT AND OTHERS, Respondents.
• Court: Missouri Supreme Court

22 Mo. 361

PERRY AND OTHERS, Appellants,

v.CALVERT AND OTHERS, Respondents.

Supreme Court of Missouri.

January Term, 1856.

1. A makes a fraudulent conveyance of land. A judgment is subsequently recovered against him, and the land is sold under an execution, and B. becomes the purchaser, who afterwards conveys back to A., who then conveys to C., who has notice of the facts. Held, that as A. could not have obtained equitable relief against his frauduleut deed, neither can his grantee with notice.

Appeal from Platte Circuit Court.

Petition by C. A. & E. H. Perry against Lewis Calvert, Simeon L. Stewart and Malinda Stewart, his wife, praying to have a deed set aside and cancelled.

The petition stated that on the 10th of November, 1843, Simeon L. Stewart entered at the land office in Plattsburgh a tract of land to which he had a pre-emption right, and on the next day conveyed the same to the defendant, Calvert, in trust for his wife, Malinda Stewart, during her life, and at her death to go to the heirs of her body begotten by him; that the patent for said land issued to said Simeon on the 1st of April, 1846, long after said conveyance; that said conveyance, having been executed and delivered before the patent issued, was null and void under an act of congress, and furthermore, that it was executed in fraud of the creditors of said Simeon, he being largely indebted at the time, and having no other property; that on the 7th of April, 1846, a judgment was recovered by James H. Stewart against said Simeon, upon which an execution issued, under which said land was sold, and James H. Stewart became the purchaser, and afterwards received from the sheriff a deed; that on the 8th of July, 1847, said James H. Stewart, for a consideration of $200, sold and conveyed all his right, title and interest in said land to said Simeon L. Stewart; and that on the 7th of May, 1853, said Simeon, for a consideration of $1600 previously paid, executed and delivered to plaintiffs a deed for said land, with a relinquishment of dower by his wife, Malinda.

Upon these facts, the plaintiffs prayed that the deed to Lewis Calvert might be set aside and cancelled.

The defendant, Calvert, filed a demurrer to this petition, which was sustained by the Circuit Court.

Abell & Stringfellow, for appellants.

1. The deed from Simeon Stewart to Calvert before the patent issued, is void (4 U. S. S. p. 496, ch. 9, p. 420, 678; 5 U. S. S. 251, 382, 453, 456.) 2. The demurrer admits that the deed is void as to creditors, and of course it was a nullity against the title acquired by James H. Stewart under the execution sale. James H. Stewart, having acquired a good title, had a right to dispose of it to anybody--to Simeon, who had made the fraudulent deed, as well as to others; and by that purchase, Simeon acquired a good title against his own previous deed. But whether good in the hands of Simeon or not, when it passed from him to the plaintiffs, they certainly acquired all the title of James H. Stewart. (2 Hawks, 535; Supp. to U. S. Dig. tit. “Estoppel.”)

H. M. Vories, for respondent, that the plaintiffs could not set up the fraud of Simeon Stewart as a ground of relief; cited 13 Mo. Rep. 151; 8 Conn. Rep. 312; 3 Pick. 56; 7 Greenleaf, 96; 3 A. K. Marsh. 65, 474; 3 Paige, 154; 6 Barb. S. C. Rep. 380; 2 Lead. Cases in Equity, part 11, p. 99, 131.

LEONARD, Judge, delivered the opinion of the court.

“All writers upon our law agree that no polluted hand shall touch the pure fountains of justice.” This principle, to be found in every system of jurisprudence, would be sufficient to dispose of the case if Simeon Stewart were the party applying here for the relief instead of his grantee. He could not be allowed to ask a court to annul his own conveyance on the ground that he violated the pre-emption laws of the United States in making it, or because his...