Reed v. Bott

• Decision Date: 18 November 1889
• Citation: 12 S.W. 347,100 Mo. 62
• Parties: REED v. BOTT et al.
• Court: Missouri Supreme Court

12 S.W. 347

100 Mo. 62

REED v. BOTT et al.

Supreme Court of Missouri.

November 18, 1889.

FRAUDULENT CONVEYANCES — PLEADING.

Where a petition alleges that one of the defendants bought certain real estate, and had the same conveyed to his wife for the purpose of defrauding his creditors, and the evidence shows that the land was purchased by such defendant's father, who conveyed it to the wife, the plaintiff, who had purchased the land under a judgment against such defendant, is not entitled to a decree avoiding the conveyance, though the money paid for the land may have been the proceeds of defendant's labor, and the petition concluded with an allegation that the land in fact belonged to him. BARCLAY, J., dissenting.

Appeal from circuit court, Scotland county; BEN E. TURNER, Judge.

Berkheimer & Givens, for appellants. John A. Whiteside and Frank Hagerman, for respondent.

BLACK, J.

This is a suit in equity against John A. Bott and his wife, Mary E., to have a deed for 73 acres of land to her declared fraudulent, and to vest the title in the plaintiff. The plaintiff purchased the property in 1885, under a judgment in favor of Max Yesnor against John A. Bott, rendered in March, 1884, on a note dated in March, 1882. The defendants appealed from a decree in favor of the plaintiff.

The first objection made by defendants is that the proof does not support the cause of action stated in the petition. The petition states that "on ______ day of ______, 1881, defendant John A. Bott purchased of L. K. and Nancy Wilcox the following real estate, [describing it;] that on the ______ day of September, 1884, John A. Bott paid the balance of the purchase price for the land, and, for the purpose of defrauding his creditors, instructed Wilcox and wife to execute a deed to Mary E. Bott, the wife of said John A. Bott; that the deed was made to her, the defendant John A. Bott intending thereby to defraud his creditors." The petition goes on to say "that on the 30th September, 1881, John A. Bott made a contract of purchase of the land, receiving a bond for a deed in the name of John Bott, — which was in fact the true name of defendant John A. Bott, and not the name of his father, — whereby Nancy L. Wilcox and her husband bound themselves, upon the payment of $375 in three years from the date thereof, with interest at the rate of 8 per cent. per annum, to convey said lands to John A. Bott. Afterwards, on the ______ day of ____ _, 1884, said Nancy Wilcox and husband made and executed a warranty deed to Mary E. Bott; and afterwards, on the ______ day of _____, 1885, they made a second deed to Mary E. Bott. And plaintiff shows that said property in fact belonged to J. A. Bott, and he, for the purpose (Mary E. Bott participating therein) of hindering, cheating, defrauding, and delaying his creditors, purchased the same, paid for it, and caused the deed to be made to his said wife," etc. The proof shows beyond all question that the bond for the title was made by Wilcox and wife to John Bott, who was the father of John A. Bott. John Bott says he made the first payment to Wilcox, namely, $350, and this statement is not controverted. He also executed his note for the deferred payment of $375, and when it became due he paid it, and had the deed made to Mrs. John A. Bott. The first deed to her was made in California, and was defective, if not worthless, and the second was made in correction of the first. Prior to 1881, John A. Bott was engaged in a mercantile business, and in that year his property was damaged by fire. He then compromised with his...