Rankin v. Harper
Decision Date | 31 October 1856 |
Citation | 23 Mo. 579 |
Parties | RANKIN, Respondent, v. HARPER et al., Appellants. |
Court | Missouri Supreme Court |
1. A father purchased land in the name of his son with intent to defraud his creditors; held, 1st, that the contemplated fraud upon creditors repelled the presumption of an advancement to the child; that consequently there was a resulting trust to the father for the benefit of his creditors; 2d, that this interest in the father was subject to seizure and sale on execution under judgments in favor of such creditors.
2. A defendant can not be a witness for his co-defendant.
3. Where, upon the polling of a jury, eleven assent to the verdict, and one juror, in answer to the question of the clerk, “is this your verdict?” answers as follows: “It is, as far as it goes;” held, this answer does not invalidate the verdict.
4. A. having purchased a tract of land, it was conveyed to a son of A. with intent to defraud the creditors of A.; held, in a suit to annul this deed in behalf of one of those creditors who had purchased the land at a sale on execution under a judgment in his favor against A., that evidence was inadmissible to show, in behalf of defendants, the pecuniary circumstances of A. several years after the conveyance to his son.
Appeal from St. Louis Land Court.
The petition of the plaintiff, Harper, sets forth substantially that plaintiff is entitled to the possession of the land in controversy; that one Otis West, under whom plaintiff claims, purchased the same at a sheriff's sale on execution under a judgment against Daniel Harper, one of the defendants, and received the sheriff's deed therefor dated May 15, 1846; that defendants have been in unlawful possession of said premises since May 15, 1846; that
Daniel Harper answered, denying the fraud in the petition. Orrin Harper answered by a guardian ad litem in the common form, submitting the rights of the infant to the protection of the court.
The evidence introduced tended to prove the truth of the facts charged in the petition. It appeared that Josiah Pope and Otis West, of the firm of Pope & West, in the year 1844, recovered a judgment for $317.81 against Daniel Harper upon an indebtedness which had accrued in their favor previously to the purchase of the land in controversy by Daniel Harper, and the conveyance to his minor son Orrin Harper; that execution issued February 9th, 1846, and was levied upon the land in controversy in April, 1846, to pay an unsatisfied balance; that Otis West became the purchaser at the sheriff's sale, and received the sheriff's deed therefor dated May 16, 1846. Defendants offered to prove the state of Daniel Harper's pecuniary circumstances in the year 1842 and later. The court excluded the testimony. Plaintiff in reply introduced in evidence the sheriff's return on the execution against Harper dated February 9, 1846, to the effect that “no goods and chattels of Harper were found out of which to make the balance of the execution.” Defendants then again offered to prove that, during the whole time of the life of the execution, said Harper was the visible and known proprietor of a large amount of personal property subject to execution, more than sufficient to satisfy the same. The court excluded the testimony. Daniel Harper was offered as a witness for his co-defendant, Orrin Harper, but was rejected by the court.
The court, on the motion of plaintiff, gave the following instructions:
The defendants moved the court to give the following instructions: The court refused to instruct the jury as requested by defendants. Exceptions were duly taken.
The jury found for the plaintiff, and assigned his monthly damages “at the sum of fifty cents per month for the time said plaintiff was kept from possession of the premises.” Upon the return of the jury with a written verdict, on the motion of defendants, the jury was polled. Eleven of the jurors assented to the verdict. One juror, in answer to the question of the clerk, “is this your verdict?” said “it is, as far as it goes.” The defendants objected to the reception of the verdict. The court ordered the verdict to be received as the unanimous finding of the jury.
The court, by its own decree, annulled the conveyance of May 10, 1839, to Orrin Harper, and vested all the right, title and interest of the defendants, Daniel and Orrin Harper, in and to the tract of land in controversy, in the plaintiff, Harper; and ordered “that plaintiff recover of said defendants the monthly damages aforesaid, in form aforesaid as assessed, together with costs,” &c. Defendants appealed to this court.
R. M. Field, for appellants.
I. In the most favorable aspect of the case for the plaintiff, the defendant Daniel Harper made a fraudulent purchase for his son. It is conceded that a court of equity would, in favor of a creditor, raise out of the property purchased the money advanced by the father. But the father had no estate or interest in the land to be sold on execution. (R. C. 1845, p. 478.) There is no resulting trust in favor of a parent purchasing in the name of a child. (2 Sugd. on Vend. 145; Matthews' Presump. Ev. 61; 2 Johns. Ch. 405; 17 Eng. Ch. R. 447.) The statute against fraudulent conveyances only avoids fraudulent sales in favor of creditors of the grantor. (R. C. 1845, p. 525.) To apply the statute to the present case would manifestly defeat the object of the plaintiff; for, if the deed from Daniels to Orrin Harper were void, then the title to the land in controversy still remained in Daniels, and the plaintiff could not recover. That a fraudulent purchase is not within the statute against fraudulent conveyances appears from the following authorities: Roberts on Fraudulent Conveyances, 463; 1 Yerg. 79; 7 Yerg. 155; Gowing v. Rich, 1 Iredell, 553.
II. The court below erred in excluding Daniel Harper as a witness on behalf of his co-defendant. The father, though a formal party on the record, had really no interest in the controversy. He claimed no estate in the land. It was indifferent to him whether the land was adjudged to his creditor or his son. The suit was equitable in its character, and the present question must be judged by the rules prevailing in courts of equity. The established rule in equity is, that a defendant having no interest is a competent witness. The new practice act has not changed the rule. (1 Code Rep. 123; Id. 113; 9 How. P. R. 385.) Nor is it material that the witness might have been subjected to costs. (Burns v. Taylor, 23 Ala. 255.) Nor under the practice here was any previous order necessary. (Black. v....
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Keyes v. C.B. & Q. Railroad Co.
...have been entered for the defendant. The poll was conclusive. Cattell v. Publishing Co., 88 Mo. 356; Norvell v. Deval, 50 Mo. 272; Rankin v. Harper, 23 Mo. 579; Roman v. King, 268 S.W. 414; Poulson v. Collier, 18 Mo. App. 583; 2 Thomp. Trials (2 Ed.) 1917; 27 R.C.L. 895, secs. 6, 10; Perry ......
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...have been entered for the defendant. The poll was conclusive. Cattell v. Publishing Co., 88 Mo. 356; Norvell v. Deval, 50 Mo. 272; Rankin v. Harper, 23 Mo. 579; Roman King, 268 S.W. 414; Poulson v. Collier, 18 Mo.App. 583; 2 Thomp. Trials (2 Ed.) 1917; 27 R. C. L. 895, secs. 6, 10; Perry v.......
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