Peyton v. Rose

• Citation: 41 Mo. 257
• Parties: MISSOURI PEYTON, Plaintiff in Error, v. OLIVER C. P. ROSE, Defendant in Error.
• Decision Date: 31 August 1867
• Court: United States State Supreme Court of Missouri

41 Mo. 257

MISSOURI PEYTON, Plaintiff in Error,

v.OLIVER C. P. ROSE, Defendant in Error.

Supreme Court of Missouri.

August Term, 1867.

Error to Fifth District Court.

H. M. & A. H. Vories, for plaintiff in error.

Hall & Oliver, and Woodson & Jones, for defendant in error.

I. The defendant in his answer having admitted that suit was brought by Wm. S. Peyton against Francis Marion Rose, by the name of Marion Rose, and that judgment was recovered as stated in said petition, was precluded from raising on the trial the question of variance between the said allegations of the petition and the record of said suit and judgment--Cummings v. Gubridge, 17 Mo. 470.

II. There is no variance between the allegations of the petition and the proof adduced on the trial--1 Greenl. Ev. 67; 1 Cow. & H. Notes to Phill. Ev. 674; 5 Pick. 232, 235; Crane v. Dygel, 4 Wend. 675; 4 Allen, 376; 7 Greenl. R. 131; Beach et al. v. Curle's Adm'r, 15 Mo. 115.

III. The facts set forth in the petition and proved on the trial entitle plaintiff to the relief decreed by the court--Lilland v. McGee, 4 Bibb, 165; Fox v. Hill, 1 Conn. 295; 18 Pick. 131; Rankin v. Harper, 23 Mo. 584; Dunnica v. Coy, 24 Mo. 168.

HOLMES, Judge, delivered the opinion of the court.

The plaintiff recovered judgment in this action in the Buchanan Court of Common Pleas, which was affirmed on writ of error to the District Court of the fifth district, and the defendant appeals to this court.

The case appears to have been tried in the court below as a cause of action in the nature of a bill in equity. The general object of the petition was to have a conveyance declared void as being a fraud upon the rights of the plaintiff. It was alleged, among other things, that one Wm. S. Peyton, the father of the plaintiff, had brought a suit against one Francis Marion Rose for damages, and that, pending the suit, the said Rose had conveyed the farm in question to his brother, the defendant herein, with a fraudulent intent to avoid the payment of any judgment that might be recovered against him in said suit; that the plaintiff recovered a judgment therein for one thousand dollars damages; and that at the sheriff's sale, under execution issued upon said judgment, and levied upon this land, the plaintiff had become the purchaser at the price and sum of five dollars, and received the sheriff's deed for the land; and the prayer was that said conveyance from Francis Marion Rose to the defendant be cancelled and held for naught, and that the plaintiff might have a judgment for the possession of said real estate.

Without going further at present with the statement of the case, it is apparent here, for one thing, that the plaintiff must show some right, title or interest in the land vested in himself before she can have any standing in a court of equity, or be in a position to question this conveyance, or to complain of the fraud alleged; and this is enough to call for a consideration of the questions of law arising upon the exceptions taken by the defendant to the admission of the evidence offered by the plaintiff for the purpose of proving a title vested in her.

The allegations were substantially that the suit had been brought by the plaintiff therein against Francis Marion Rose, by the style and description of Marion Rose, for the recovery of damages for the seduction of his daughter; that the plaintiff had recovered a judgment therein against said Francis Marion Rose for the sum of one thousand dollars damages; that the sheriff levied upon and sold, under the execution, all the right, title and interest of said Marion Rose in and to said real estate; that the plaintiff here, as the purchaser at the sale; received a deed from the sheriff for all the right, title and interest of said Francis Marion Rose in said real estate, and that during the pendency of the suit the said Francis Marion Rose had made the fraudulent conveyance in question, in collusion with the defendant, for the purpose of preventing a collection of the judgment to be obtained, and with intent to hinder, delay and defraud creditors. The record, execution and sheriff's deed were all in the name of Marion Rose. The answer of the defendant ran in the name Francis Marion Rose (who is sued by the name of Marion Rose), and the evidence showed that his true name was Francis Marion Rose. The execution was for the sum of one thousand dollars damages and $91.75 costs, and the names of the parties and the dates and amount of the judgment and execution were correctly written in the deed. Exception appears to have been taken to the admission of the deed for the reason that there was a variance between it and the judgment and execution; to the admission of the record, because it did not agree with the execution and deed in the names of the parties, and to admission of the execution, because there was a variance between it and the judgment and deed; but there was no exception on the ground of a variance between these proofs and the allegations of the petition. It is not clear what was meant by these exceptions. It is plain that there was no material variance between these documents when compared with one another, and there can be no doubt that the deed referred to this identical judgment and execution, and sufficiently recited the necessary parts. It was insisted more especially, that the petition had alleged a judgment against Francis Marion Rose, and that this was so far descriptive of the judgment that it must be exactly proved. It is a sufficient answer to this, that no exception was taken to the admissibility of the evidence on this ground, and it has often been held that such objections are waived unless made and excepted to on the trial; but even if the objection had been taken it would not avail, for the tenor of the petition is that the suit was commenced and the whole proceedings had against the defendant by the name and style of Marion Rose, and the fair construction would be that the allegation was that the judgment had been rendered against Francis Marion Rose by that name. We cannot say that there was any material error in admitting these documents; they supported the petition, and the title of the plaintiff, as against...