Sloan v. Torry

• Decision Date: 31 October 1883
• Citation: 78 Mo. 623
• Parties: SLOAN v. TORRY et al., Appellants. TERRY v. TORRY et al., Appellants.
• Court: Missouri Supreme Court

78 Mo. 623

SLOAN

v.TORRY et al., Appellants.

TERRY

v.TORRY et al., Appellants.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Comingo & Slover and Wooldridge & Daniel for appellants.

R. O. Boggess and R. T. Railey with C. W. Sloan for respondents.

HOUGH, C. J.

These are separate suits, but the issues being the same in each, they were tried as one. Plaintiffs seek to subject to the payment of debts due them from one L. M. Torry, deceased, which were duly allowed against his estate, a certain tract of land in Cass county, the legal title to which is vested in the defendant Evans. On the 26th day of September, 1870, L. M. Torry, husband of the defendant, Henrietta E. Torry, died intestate and insolvent. About three weeks before his death he negotiated for a certain house and lot in Harrisonville, Cass county, belonging to the defendant Evans, the son-in-law of Mrs. Torry, and then directed him to make the deed to his wife Henrietta, the defendant. The defendant Evans executed a deed as directed to his co-defendant, Mrs. Torry, on the 26th day of September, 1870, which deed was dated September the 19th, 1870, and was acknowledged and delivered on the 26th day of September, 1870. The deed was dated on the 19th because that was the day on which the attorney had been requested to prepare it. The deceased stated to the defendant Evans and to others, that he had this property conveyed to his wife because he had sold property belonging to her, situate in New Orleans, and had spent the proceeds of said sale, and he intended to make it up to her in property in Harrisonville. The defendant Evans was administrator of the estate of the deceased and knew the condition thereof. While he was administrator, Evans negotiated a trade of the property conveyed by him to Mrs. Torry, to one Don C. Davis, for the property now sought to be subjected to the payment of plaintiffs' demands, and, in pursuance of said trade on August 5th, 1871, the Harrisonville property was conveyed to Davis, and on August 14th, 1871, Davis conveyed the property involved in this suit to the defendant Evans, who testified that he paid Mrs. Torry $2,000 and Davis $1,000, the price of the Davis property being $3,000, and that of Mrs. Torry $2,000. The plaintiffs' demands amount to about $1,000.

1. FRAUDULENT CONVEYANCE.

Regarding for the present the conveyance by the decedent, through the defendant Evans, to Henrietta Torry, as being voluntary, and the land thereby conveyed as therefore subject to the payment of his debts, it seems quite plain that the estate acquired by Evans from Davis, through Mrs. Torry, with knowledge of the fact that the conveyance to her was voluntary and that the deceased was insolvent, will be subject to the satisfaction of the plaintiffs' demands. Allen v. Berry, 50 Mo. 90. This transaction was, in effect, a purchase by Evans of Mrs. Torry's property, with notice that it was subject to the claims of creditors, and an exchange by him of said property for the Davis property.

2. STATUTE LAWS OF SISTER STATES: common law.

To meet this condition of things, and for the purpose of showing that Mrs. Torry was a creditor of her husband when he caused the Harrisonville property to be conveyed to her, the defendants introduced testimony showing that, in 1868, the defendant, Henrietta Torry, held in her own name certain real property in the state of Louisiana, which her husband sold under a power of attorney from her, and used the proceeds, and after his return to this state he told his wife that she should not be the loser by it, and that he would pay her every cent of the money used by him. He did not tell her, however, what he received for the Louisiana property, but it elsewhere appears that it was about $2,000. So far as the laws of Louisiana may have any bearing upon the rights of the parties to this controversy, they cannot be regarded in making our decision, as they were not offered in evidence, and we cannot take judicial notice of them, nor can we presume that the common law is in force in that state. Flato v. Mulhall, 72 Mo. 522.

3. HUSBAND AND WIFE: wife's property.

In the absence of evidence that the property in Louisiana was paid for by the separate means of Mrs. Torry, the presumption of law is, it having been acquired during coverture, that it was paid for with the means of her husband....