Peyton v. Rose

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHOLMES
Citation41 Mo. 257
Decision Date31 August 1867
PartiesMISSOURI PEYTON, Plaintiff in Error, v. OLIVER C. P. ROSE, Defendant in Error.

41 Mo. 257

MISSOURI PEYTON, Plaintiff in Error,
v.
OLIVER C. P. ROSE, Defendant in Error.

Supreme Court of Missouri.

August Term, 1867.


[41 Mo. 258]

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

[41 Mo. 259]

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...

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24 practice notes
  • Magwire v. Tyler
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1870
    ...to put plaintiff in possession, and hence he can have no relief on his bill. This court has intimated such a doctrine. (Peyton v. Rose, 41 Mo. 257.) But there never was the least authority for it either in England or America. (Huguenin v. Basely, 15 Ves. 180; Brown v. Cuffe, 1 Hogan, 145; D......
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...v. Ins. Co., 44 Mo. App. 426; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; Koch v. State Highway Comm., 47 S.W. (2d) 138; Peyton v. Rose, 41 Mo. 257; Allison v. Mo. P. & L. Co., 59 S.W. (2d) 771; Steinberg v. Bank, 324 Mo. 297, 67 S.W. (2d) 63; Doerner v. St. L. Crematory, 80 S.W. (2d) 7......
  • St. Louis v. Senter Comm. Co., No. 32488.
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1937
    ...supra; West v. Miles (1845), 9 Mo. 167; State v. Matson (1866), 38 Mo. 489; Jones v. Tuller (1866), 38 Mo. 363; Peyton v. Rose (1867), 41 Mo. 257; Nordmanser v. Hitchcock (1867), 40 Mo. 178; Gray v. Payne (1869), 43 Mo. 203; Sweet v. Maupin (1877), 65 Mo. 65; McIntire v. McIntire (1883), 80......
  • Riggs v. Price, No. 19411.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1919
    ...the pleadings, be invoked that, if the conveyance be fraudulent, the defendant got no title, and hence could convey none. Peyton v. Rose, 41 Mo. 257. But it will suffice to say that the decree should have been limited to a determination of the character of the conveyance under which the def......
  • Request a trial to view additional results
24 cases
  • Magwire v. Tyler
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1870
    ...to put plaintiff in possession, and hence he can have no relief on his bill. This court has intimated such a doctrine. (Peyton v. Rose, 41 Mo. 257.) But there never was the least authority for it either in England or America. (Huguenin v. Basely, 15 Ves. 180; Brown v. Cuffe, 1 Hogan, 145; D......
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...v. Ins. Co., 44 Mo. App. 426; Flowers v. Smith, 214 Mo. 98, 112 S.W. 499; Koch v. State Highway Comm., 47 S.W. (2d) 138; Peyton v. Rose, 41 Mo. 257; Allison v. Mo. P. & L. Co., 59 S.W. (2d) 771; Steinberg v. Bank, 324 Mo. 297, 67 S.W. (2d) 63; Doerner v. St. L. Crematory, 80 S.W. (2d) 7......
  • St. Louis v. Senter Comm. Co., No. 32488.
    • United States
    • United States State Supreme Court of Missouri
    • February 19, 1937
    ...supra; West v. Miles (1845), 9 Mo. 167; State v. Matson (1866), 38 Mo. 489; Jones v. Tuller (1866), 38 Mo. 363; Peyton v. Rose (1867), 41 Mo. 257; Nordmanser v. Hitchcock (1867), 40 Mo. 178; Gray v. Payne (1869), 43 Mo. 203; Sweet v. Maupin (1877), 65 Mo. 65; McIntire v. McIntire (1883), 80......
  • Riggs v. Price, No. 19411.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1919
    ...the pleadings, be invoked that, if the conveyance be fraudulent, the defendant got no title, and hence could convey none. Peyton v. Rose, 41 Mo. 257. But it will suffice to say that the decree should have been limited to a determination of the character of the conveyance under which the def......
  • Request a trial to view additional results

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