"This is a bill in equity to set aside a conveyance, dated September 8, 1898, from the defendants Daniel H. Duffy and Elizabeth Duffy, his wife, to Daniel H. Early, for a portion of lot 9, in block 28, in Pattee's addition to the city of St. Joseph; the portion aforesaid being the excess in area of said lot over and above the 18 square rods of ground exempt, under section 3616, Rev. St. 1899, as a homestead of the defendant Elizabeth. There was a judgment for the defendant on the pleadings, without a trial of the merits of the case further than as stated in the pleadings, in the trial court, and the plaintiff appealed.
"The petition charges that at the September term, 1898, of the circuit court of Buchanan county, the plaintiff obtained a judgment against the defendants Daniel H. Duffy and Elizabeth Duffy for the sum of $695.53, on a promissory note executed by them on the 16th of April, 1894, to one John Vahey, or order, and by him transferred to the plaintiff; that on the 8th of September, 1898, the defendants Duffy, were the owners in fee simple of all of lot 9, in block 28, in Pattee's addition to St. Joseph; and that on that day, they, with intent and design to defeat the collection of said judgment, and to cheat, defeat, hinder, and delay their creditors, and especially the plaintiff, executed a warranty deed to all of said lot, to the defendant Daniel H. Early, but that said conveyance was without consideration
and voluntary and fraudulent for the reasons stated; and at all times mentioned, the defendants Duffy were insolvent, and had no property out of which said judgment could have been made; that on the _____ day of _____, 1902, the plaintiff caused an execution to be issued on said judgment against said Duffys, and that under said execution, the sheriff levied on a certain part of said lot, particularly described in the petition, and being the excess in area of said lot over and above the 18 square rods exempted for homestead purposes, under section 3616, Rev. St. 1899, and after complying with the laws with respect to the sale of real estate, under execution, the sheriff sold that part of said lot, on the 17th of November, 1902, to the plaintiff as the highest and best bidder therefor, and executed and delivered to the plaintiff a sheriff's deed therefor. The prayer of the petition is that the deed from the Duffys to Early be set aside, as to said portion of said lot. The answer of the defendants Duffy is a general denial, coupled with a special plea of res adjudicata, in which special plea it is stated that the subject-matter of this action was heretofore adjudicated in a suit between the same parties hereto; that on the 18th of October, 1898, the plaintiff instituted an action against these defendants upon `the same identical causes, as is alleged in his petition in this action'; that the case was heard before the circuit court and judgment entered in favor of the plaintiff; that the defendants appealed to the Supreme Court, where the judgment of the circuit court was reversed, and a judgment entered in favor of the defendants. [That case is the case of William E. Spratt v. Daniel H. Early et al., 169 Mo. 357, 69 S. W. 13.]
"The answer of the defendant Early is a general denial, with special pleas as follows:
"First, that on the 29th of August, 1895, he purchased the property described in the petition from the plaintiff, and paid him $2,500 therefor; that he continued to own the property until the 31st of January, 1896, when he sold the same to the defendant Elizabeth Duffy in consideration of the sum of $2,500 to be paid by her in the future, and that in the event of her failure so to do she was to reconvey the property to him; that Mrs. Duffy continued to own the naked, legal title to the property until the 8th of September, 1898, when, being unable to pay any part of the purchase price, she reconveyed the property back to the defendant Early, under the agreement aforesaid; that Mrs. Duffy never paid any part of the purchase price, and that, at the time she reconveyed it to the defendant Early, she had no interest or title in the property other than a mere naked, legal title, and that the property was not subject to any indebtedness of Mrs. Duffy, that was in existence on September 8, 1896, the day she conveyed to the defendant Early aforesaid.
"Second, a plea of res adjudicata setting up the prior suit by this plaintiff against these defendants, above referred to, including the pleas and judgments of the trial court and the Supreme Court, and the trial court entered pursuant to the judgment of the Supreme Court. The reply to the separate answers is a general denial of all matters not specifically admitted, coupled with an admission as to the prosecution of the prior suit, and an averment that in the prior suit, the plaintiff sought to subject the whole of lot 9, aforesaid, to the payment of his judgment, and, in that suit, contended that the whole conveyance of the whole lot was fraudulent and void; that the defendants in this suit denied that the conveyance to Early was fraudulent, but alleged that even if there was no consideration therefor, nevertheless, as the property had been acquired with money which Mrs. Duffy had derived from the sale of her homestead, she could transfer said lot without any wrong to the plaintiff; that the trial court found that the conveyance was without any consideration and was void, and that the lot was not the homestead of Mrs. Duffy, but that she had abandoned the same and therefore said lot was subject to plaintiff's judgment; that the defendants appealed from that judgment to the Supreme Court, which court reversed the judgment of the trial court, on the ground solely that the property was the homestead of Mrs. Duffy, and therefore was not subject to sale to satisfy the plaintiff's judgment; that the Supreme Court said that if the property was not the homestead of Mrs. Duffy, it would have been subject to the plaintiff's judgment; that in the former suit no point was made, or attempted to be made, as to the area of the lot in question, and that the Supreme Court only adjudicated that Mrs. Duffy had a homestead; that said lot contains more than 18 square rods of ground, and was located in a city then and now having more than 40,000 inhabitants; that after the decision of this court, in the former case, to wit, on the 20th day of June, 1902, the plaintiff caused an execution, to be issued on said judgment, and levied upon the whole of lot 9, aforesaid, that Mrs. Duffy claimed her homestead in said lot, and refused to designate and choose the part thereof which she would take as exempt, and the sheriff proceeded in accordance with the provisions of section 3617, Rev. St. 1899, and appointed disinterested appraisers, who having duly sworn, set apart to Mrs. Duffy a homestead of the area allowed by statute as a homestead, and then the sheriff proceeded with the levy of the execution upon the residue of said lot, which is the property described in this suit, and that the...
