Reid v. Mullins

• Citation: 48 Mo. 344
• Parties: JAMES REID, JR., Respondent, v. A. W. MULLINS, Appellant.
• Decision Date: 31 August 1871
• Court: United States State Supreme Court of Missouri

48 Mo. 344

JAMES REID, JR., Respondent,

v.A. W. MULLINS, Appellant.

Supreme Court of Missouri.

August Term, 1871.

Appeal from Linn Circuit Court.

As appears from defendant's answer, the property bid in by Waters and Cave, as stated in the opinion of the court, was sold to them in 1860, which was after the deed of trust, and after the date of the deed from Reid, Sr., to Reid, Jr., but before the sale under the trust deed.

A. W. Mullins, for appellant.

The deed from James Reid, Sr., to James Reid, Jr., the plaintiff, was utterly void. (Wagn. Stat. 280, § 2.) The question as to the validity of that deed could properly be raised by the defendant's answer in this suit. And if the deed was fraudulent and void, the plaintiff had no right to the surplus fund in controversy. (Every v. Edgarton, 7 Wend. 259.) The equity of the case is certainly against the plaintiff.

Easley and G. D. Burgess, for respondent.

The motion to strike out part of the answer of appellant was properly sustained. The matter stricken out was an attempt upon the part of one who was neither a creditor nor purchaser to attack a conveyance for an alleged fraud. (1 Sto. Eq., § 371; McLaughlin v. McLaughlin, 16 Mo. 243.) It was also an attempt to litigate the rights of Waters and Cave, who are not parties to the suit. If the appellant wanted to raise the questions set up in that part of his answer, he should have caused Waters and Cave and respondent to interplead for the fund. (2 Sto. Eq. ch. 22, p. 12 et seq.)

BLISS, Judge, delivered the opinion of the court.

Defendant was named as trustee in two deeds of trust executed by James Reid, Sr., father of plaintiff, both for the benefit of John H. Ware, one to secure a note of $500, and the other a note of $450 and interest; and afterward the said Reid, Sr., conveyed the same property to the plaintiff, subject to said deeds of trust. Upon maturity of the notes the trustee sold the propperty, which was bid in by R. G. Waters, for the use of the firm of Waters & Cave, for the sum of $1,400, and a deed was executed reciting the bid. This suit was instituted to recover of Mullins, the trustee, the balance in his hands over and above the amounts due upon the notes named in the trust deed.

Among other things, the defendant set out in his answer that James Reid, Sr., was largely involved in debt over and above the notes secured by the trust deed, and more than he was able to pay, the said Waters & Cave being among his creditors; that the deed to his son, the plaintiff, was without consideration, and made to defraud his creditors; that the said Waters & Cave put their claim in judgment, and levied on and sold the interest of Reid, Sr., in the property, bidding it in themselves; that they also purchased the notes secured by the trust deeds, and at the sale by defendant owned the same; and that at said last...