Rogers v. Brown

Decision Date31 October 1875
Citation61 Mo. 187
PartiesHENRY C. ROGERS, Respondent, v. THOMAS J. BROWN, et al., Appellants.
CourtMissouri Supreme Court

Appeal from Pettis Circuit Court.

Crandall & Sinnett, with Draffen & Williams, for Appellants.

This action being brought more than ten years after the record of Collet's deed, is barred by the statute. (Wagn. Stat., 915, § 1; Hunter vs. Hunter, 50 Mo., 445.) The present statute was intended to embrace all actions whether legal or equitable, and superseded the rules of common law and equity. (Hunter vs. Hunter, supra;Martin vs. Smith, 1 Dill., 85; Relfe vs. Eberly, 23 Iowa, 467; Williams vs. Allison, 33 Ia., 279; U. S. vs. Mallard, 4 Benedict [[[[[U. S. Dist. Ct.], 459, 465; Pitcher vs. Flinn, 30 Ind., 202; Bank v. Dalton, 9 How., 522; Walker vs. Bacon, 32 Mo., 144.)

Admitting that the statute commenced running only with discovery of the alleged fraud, the fraud was consummated at the time of the record, and plaintiffs had notice of the fraud, if any. (Thomas vs. Matthews, 51 Mo., 101.) Notice to the creditors, under whose judgment plaintiff claims, was notice to him.Phillips & Vest, for Respondent.

This is a suit to set aside a fraudulent sale of land, and to vest the title in plaintiffs. And the statute did not begin to run till the discovery of the fraud which was shown to be on or about March 1st, 1867, and was less than ten years after the deed of Collet to Brown. This question was fully discussed, and the law so declared, in Hunter vs. Hunter. (55 Mo., 445; Wagn. Stat., 917, § 10, subd. 5.)

Knowledge of the transfer from Collet to Brown, did not constitute a discovery of the fraud. To that end in equity there should also be a knowledge of the facts which made it fraudulent. (Martin vs. Smith, 1 Dill. Ct. Ct. Rep., 85; Godbalt vs. Lambert, 8 Rich. Eq., 155-164.) Under the statute, (§ 10, subd. 5, supra) the party aggrieved” has his action if the fraud is discovered within ten years from perpetration. Here the party aggrieved is not an original creditor, but the purchaser. To hold that he would be affected with whatever private notice a judgment creditor might have, would deter purchasers and destroy the vendibility of property under execution.

The instruction of the court given at its own instance, put the question of diligence in discovering the fraud fairly before the jury.

HOUGH, Judge, delivered the opinion of the court.

This was a suit instituted for the purpose of setting aside a conveyance of certain lands alleged to have been made in fraud of creditors. The petition on which the cause was tried, charged that on the 23d day of October, 1857, the defendant (Collet), then a resident of Moniteau county, was seized of an estate in fee simple, in certain lands lying in that county; that at said date he was largely indebted and in failing circumstances, and that for the purpose of defrauding his creditors he did, on the 24th day of October, 1857, convey the said lands to his son-in-law (Brown), who was made a party defendant, for the pretended consideration of three thousand dollars, and that Brown was a party to the fraud. The petition further stated, that on the 12th day of March, 1862, four several judgments were rendered against Collet in the circuit court of Gasconade county, and that on the 26th day of December, 1866, executions were issued on said judgments, directed to the sheriff of Moniteau county, which were duly levied upon the lands in controversy, and at a sale thereunder, the plaintiff became the purchaser. It was further alleged that the debts which were the foundations of the judgments were contracted by Collet long prior to the fraudulent conveyance made by him to Brown; that the original petition in the cause was filed on December 10th, 1867, and that the facts constituting the fraud, and upon which plaintiff based his right to relief, were first discovered by plaintiff on or about the 1st day of March, 1867. The prayer of the petition was that the conveyance from Collet to Brown should be set aside, and that the title to the land therein described, should be vested in plaintiff.

The defendants answered separately, denying all fraud and bad faith, alleging that the consideration mentioned in the deed had been paid, and for a further defense set up and relied upon the statute of limitations as a bar to the plaintiff's suit.

At the trial, issues were framed and submitted to a jury, who found that Collet made the deed in question with intent to hinder, delay and defraud his creditors; that Brown was privy to the fraud intended by Collet in making said deed; that no valuable consideration was paid by Brown to Collet for the lands described in said deed; that at the date of said conveyance Collet was indebted as alleged in the petition, and that plaintiff's cause of action accrued within ten years next before the commencement of the present suit.

The court adopted the finding of the jury, and rendered a decree as prayed in the petition, and defendants bring the case here by appeal.

We have carefully examined the testimony contained in the record, and think it is amply sufficient to sustain the finding of the jury on all the issues submitted to them, except the one relating to the statute of limitations. It having been shown by the testimony that the conveyance from Collet to Brown was made on the 24th day of October, 1857, and recorded on the 26th day of October, 1857, and that the plaintiff did not discover the facts constituting said conveyance a fraudulent one until about the first day of March, 1867, and that the present suit was not instituted until the 10th day of December, 1867, more than ten years after the conveyance from Collet to Brown, and the date of the record thereof, the question presented for our determination is, whether the plaintiff's suit is barred by the statute of limitations.

As this proceeding is in the nature of a suit in equity, we shall discuss this question without reference to the instructions given by the court to the jury on the subject.

It has been several times decided by this court, that the statute of limitations now in force is applicable to all civil actions, whether they are such as have been heretofore denominated suits in equity or actions at law. It has also been held in the cases of Bobb vs. Woodward (50 Mo., 103) and Hunter vs. Hunter ( Id., 445) that the 5th subdivision of the 10th section of the statute of limitations fixing the period of five years for the commencement of actions “for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud,” applies solely to civil actions other than those for the recovery of real property. The statute itself is explicit upon this point, and scarcely needed the aid of judicial interpretation to make this certain. In the case of Hunter vs. Hunter, supra, it was held in a suit to set aside a fraudulent conveyance of land, and for the possession of the land, that the limitation of ten years prescribed by the first section of the statute, for the institution of snits for the recovery of lands or for the recovery of the possession thereof, would apply. The same limitation is applicable to the present action. In that case it was further said, that “when the case is one of fraud, the statute will in no case commence to run till the discovery of the fraud. This was always the equity doctrine, and is still the doctrine under our code.” The plaintiff in this case contends that as he did not discover until March 1st, 1867, that the conveyance made by Collet on the 24th of October, 1857,...

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