Scharff v. McGaugh

• Decision Date: 11 June 1907
• Citation: 103 S.W. 550,205 Mo. 344
• Parties: SCHARFF et al. v. McGAUGH
• Court: Missouri Supreme Court

103 S.W. 550

205 Mo. 344

SCHARFF et al. v. McGAUGH

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

1. JUSTICES OF THE PEACE—EXECUTION—RETURN.

A return on an execution issued on a justice's judgment, reciting: "Executed the within writ in the county of Stoddard, state of Missouri, on the 2d day of May, 1893. No property found to levy this execution"—constituted a sufficient return of nulla bona.

2. TIME—COMPUTATION.

Where an execution on a justice's judgment was issued on February 1, 1893, and made returnable in 90 days, a return on May 2, 1893, was not premature.

3. EXECUTION — JUSTICE'S JUDGMENT—TRANSCRIPT—LEAVE OF COURT.

Ann. St. 1906, § 4018, authorizes the filing of a transcript of a justice's judgment in the office of the clerk of the circuit court: and section 4019 declares that every such judgment, from the time of filing the transcript, shall be a lien on real property and may be enforced in the same manner as judgments of circuit courts, but that no execution "shall be sued out" of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall have been issued by the justice, and returned nulla bona, etc. Held, that where, prior to the filing of a transcript of a justice's judgment, an execution had been issued and returned nulla bona, the clerk of the circuit court, after the filing of such transcript, was authorized in vacation to issue an execution on the same without any proceedings in the circuit court.

4. APPEAL—RECORD—RULINGS ON EVIDENCE.

Where a cause was tried before the court, in which a ruling on the admissibility of certain depositions was reserved, and the record on appeal disclosed no affirmative ruling excluding the depositions, it would be presumed

that the court heard the depositions and considered them in its final analysis of the case.

5. SAME—PREJUDICE.

Where a return on a justice's execution was shown by a certified copy of the justice's docket, as well as by the original docket, introduced in evidence, any error in the admission of depositions to prove the return on the execution, which had been lost, was harmless.

6. ESTOPPEL — RECORD — ATTACHMENT—DISMISSAL.

Where plaintiffs sued E., defendant's predecessor in title, in attachment, alleging that he had fraudulently conveyed his property with intent to defraud his creditors, and, on the case being called for trial, it was compromised by plaintiffs dismissing the attachment and E. consenting to the entry of judgment for plaintiffs for the full amount of his claim, plaintiffs, by dismissing the attachment, were not estopped to thereafter claim that E. had transferred the property in controversy in fraud of creditors.

7. EJECTMENT — PERSONS NOT PARTIES — RIGHTS.

A claim that the grantee of certain property in controversy was a bona fide purchaser cannot be litigated in ejectment, where such grantee was not in possession at the time the suit was brought, and was not made a party, as authorized by Rev. St. 1899, § 3057 [Ann. St. 1906, p. 1757.]

8. LIS PENDENS—PURCHASER PENDENTE LITE —BONA FIDE PURCHASER.

Where plaintiffs commenced an action in 1894 against E., the common source of title, and others, in which the validity of a deed executed by E. to his wife was challenged, and prior to the dismissal of such action without decision on September 20, 1900, plaintiffs brought ejectment to recover the land, a purchaser during the pendency of the first suit was not entitled to the rights of an innocent purchaser for value.

9. FRAUDULENT CONVEYANCES — RELATIONSHIP—HUSBAND AND WIFE.

A conveyance by an insolvent to his wife without consideration is void as to existing creditors, though there was no fraudulent intent.

10. SAME—BURDEN OF PROOF.

When a deed attacked by existing creditors of the grantee is not founded on a valuable consideration, the burden is on the donee to establish such circumstances as will repel the presumption of fraudulent intent.

Appeal from Circuit Court, Madison County; Robert A. Anthony, Judge.

Action by Lazarus Scharff and others against William McGaugh. From a judgment for plaintiffs, defendant appeals. Affirmed.

This cause is here by appeal from a judgment of the circuit court of Madison county, Mo., in favor of the plaintiffs. This is an action of ejectment, brought originally in the circuit court of Stoddard county to recover lots 10, 11, and 12, in block 16, of the town of Bernie. The venue of said cause was changed to the circuit court of Madison county. The petition is in the usual form, and the answer of the defendant was simply a general denial. Both parties to this proceeding claim title to the land in controversy under G. L. Edwards as the common source of title. Plaintiffs claim by virtue of a sheriff's deed under an execution against G. L. Edwards, and defendant through a direct conveyance made by G. L. Edwards to his wife, M. A. Edwards, on December 26, 1892.

The testimony on the part of the plaintiffs shows: That G. L. Edwards acquired title to the premises in dispute by deed from George Newton, dated November 5, 1892, and recorded November 28, 1892. That a short time before this deed was executed, in the month of September, 1892, G. L. Edwards became indebted to plaintiffs in the sum of $162.40, for which amount they subsequently obtained a judgment before a justice of the peace. The deed from Newton to G. L. Edwards was introduced in evidence by the plaintiffs, evidently for the purpose of showing that the debt of plaintiffs against Edwards accrued before he acquired title to the premises, and for the purpose of precluding any claim of homestead in the premises in controversy. On the 19th day of January, 1893, plaintiffs brought suit on their account against G. L. Edwards before J. R. Wilson, a justice of the peace of Liberty township, in Stoddard county, and recovered judgment on January 31, 1893, for $162.40, the full amount of their claim. An execution was issued February 1, 1893, directed to the constable of Liberty township, the township in which the defendant resided, returnable in 90 days. On the 2d day of May, 1893, the execution was returned with the following return indorsed: "Executed the within writ in the county of Stoddard, state of Missouri, on the 2d day of May, 1893. No property found to levy this execution. A. H. Welborn, Constable." On February 2, 1893, a transcript of the justice's judgment was filed in the circuit clerk's office of Stoddard county. After the execution issued by the justice had been returned, the attorney for plaintiffs filed in the office of the circuit clerk a certified copy of the execution, with the constable's return, and caused an execution to be issued by the circuit clerk. Under this execution, which was dated August 19, 1893, the sheriff levied upon and sold the premises in controversy, and plaintiffs became the purchasers, receiving the deed under which they claim. Shortly after acquiring title to the lots, and after he had become indebted to plaintiffs, G. L. Edwards, as stated, made the conveyance to his wife, M. A. Edwards, conveying "all of lots Nos. 10, 11, and 12, in the village of Bernie, county of Stoddard, and state of Missouri," and this deed forms the basis of defendant's claim. The deed from G. L. Edwards to his wife, M. A. Edwards, simply recites a consideration of $1. There was other evidence introduced by plaintiffs tending to show that G. L. Edwards, about the same time that he conveyed the property in dispute to his wife, conveyed the farm upon which he was living to his stepfather, George Newton, and by this transfer had divested himself of all the land that he owned in Stoddard county.

On the part of the defendant the deed from G. L. Edwards to M. A. Edwards, conveying all of lots Nos. 10, 11, and 12, in the village of Bernie, county of Stoddard, and state of Missouri, was offered in evidence. To this deed plaintiffs interposed objections: "First, because it purported to convey lots 10, 11, and 12, in the village of Bernie, while the premises sued for are described as lots 10, 11, and 12, in block 16, of the town of Bernie; second, because, being a direct conveyance from husband to wife, it conveyed no legal title, and constituted no defense to the action of ejectment, the answer being simply a general denial." The court, upon these objections, simply announced that it would for the present admit the deed. In addition to the foregoing deed, defendant offered the following conveyances in evidence: A quitclaim deed from M. A. Edwards to J. L. Fort and J. B. Buck, dated January 4, 1897. A quitclaim deed from J. B. Buck to Geo. Houck, dated August 5, 1899. A warranty deed from J. L. Fort and George Houck to W. M. McGaugh, dated August 15, 1899. A deed of trust from Wm. McGaugh to S. P. Jeffers, as trustee for J. L. Fort and Geo. Houck, dated August 19, 1899. A trustee's deed from S. P. Jeffers to Geo. Houck, dated August 2, 1900. A warranty deed from Geo. Houck to W. E. Edmonds and M. C. Doom, dated October 25, 1900. A quitclaim deed from M. C. Doom to W. E. Edmonds, dated June 25, 1902. There was other testimony offered by the defendant tending to show that the suit by plaintiffs against G. L. Edwards, in which a recovery of judgment for $162.40 was had, was an attachment proceeding, and that one of the grounds alleged in the affidavit for the writ of attachment was that G. L. Edwards had fraudulently conveyed and assigned his property and effects, so as to hinder and delay his creditors, and that when that suit came on for trial before the justice it was compromised by plaintiffs dismissing the attachment upon condition that G. L. Edwards would consent to the entry of judgment against him for $162.40. The depositions of Mrs. Summers and Mrs. M. A. Ashworth were offered in evidence, which tended to prove that G. L. Edwards was indebted to Mrs. Summers and that she bought the premises in suit from G. L. Edwards in satisfaction of that indebtedness,...