Stanton v. Boschert

• Decision Date: 11 May 1891
• Citation: 16 S.W. 393,104 Mo. 393
• Parties: STANTON v. BOSCHERT et al.
• Court: Missouri Supreme Court

16 S.W. 393

104 Mo. 393

STANTON v. BOSCHERT et al.

Supreme Court of Missouri, Division No. 1.

May 11, 1891.

ATTACHMENTS — LIEN — PRIORITIES — FRAUDULENT CONVEYANCE — ESTOPPEL.

1. Under Rev. St. Mo. 1879, c. 6, § 420, providing that where land is attached the officer shall file in the recorder's office of the county where it is situated an abstract of the attachment showing the names of the parties, the amount of the debt, the date of the levy, and a description of the land, the lien of an attachment dates from the time such abstract is filed, irrespective of the date of the levy.

2. A deed of trust, given by an embarrassed debtor, is void as to a subsequent attaching creditor when it appears that there was no real consideration for the deed of trust, and that it was given merely to protect the debtor's property.

3. Where two attachments are levied on the same land, and it is sold under both, the fact that the prior attaching creditor obtains an order to have the surplus proceeds arising from the sale under the junior attachment applied to the satisfaction of his debt does not estop him, as against the holder of a fraudulent deed of trust, given before any of the attachments, from claiming to be the prior attaching creditor.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Eber Peacock, for appellant. Henry B. Davis, for respondents.

BLACK, J.

The defendant Boschert, being the owner of a parcel of land in St. Louis having a front of 200 feet by a depth of about 130 feet, conveyed the same to a trustee by deed dated the 19th September, 1884, to secure his note of that date for $7,000, payable in five years, to Frank F. Henseler. There was a dwelling-house and a two-story slaughter-house and outhouses on the property, and it was incumbered by two prior deeds of trust, amounting to $4,750. On the 22d of September, 1884, Wheeler and others and Overstreet and others commenced two suits by attachment against Boschert, and in the afternoon of that day caused the writs to be levied upon personal property found in and about the slaughter-house. The attorney prosecuting these suits directed the sheriff to levy upon the real estate, saying he would furnish a description of the same next day. On the following day, the 23d, Stanton, the plaintiff in the present suit, commenced another suit by attachment against Boschert, and at the same time furnished the sheriff with a description of the real estate, and the sheriff indorsed a levy on this Stanton writ at 10 minutes after 11 o'clock in the forenoon. At that time the sheriff had made no levy of the Wheeler and Overstreet writs upon the real estate, no description having been furnished as promised; but in about half an hour thereafter he levied those writs by making an indorsement thereon, using the description of the land furnished by Stanton. He dated these levies on the 22d, instead of the 23d, when made, thus making the Stanton levy appear to be subsequent in point of time. The abstract of the Stanton attachment was filed with the recorder of deeds at 1 o'clock and 25 minutes P. M. of the 23d, and the abstract in the other cases was filed three minutes later. This difference in the time of filing the abstracts with the recorder was intentional on the part of the sheriff. Notwithstanding the defendant interposed pleas in abatement, the attachments were all sustained, and Stanton recovered judgment for $5,838, Wheeler and others for $1,558, and Overstreet and others for $336. The attached real estate, except that set off as a homestead, was sold on the 24th March, 1885. It was sold under the Stanton execution first, and he became the purchaser at $1,300; and it was then sold under the other two executions to Hoffman for $1,800, who purchased for and the deed under that sale was made to Henseler. Stanton commenced this suit in equity in November, 1885, against Boschert, the sheriff, and Henseler, setting up the foregoing facts, and alleging that the deed of trust from Boschert, dated the 19th September, 1884, for the benefit of Henseler, and the purchase of the property by Henseler at the sheriff's sale, were fraudulent transactions as against the creditors of Boschert, and asking that those deeds be set aside, and that his attachment be declared the prior lien.

1. There can be no doubt but the Overstreet and Wheeler attachments were sued out in good faith, and we shall first consider the question of priority of the attachments as between the attaching creditors themselves. Prior to the revision of 1835 it was the duty of the officer in making an attachment to go to the premises and declare, in the presence of one or more persons, that he attached the property, and to state in his return the names of the persons in whose presence the attachment was levied. The Revised Statutes of 1835 omitted these acts of notoriety on the part of the officer, and so the law continued down to 1864, when it was amended in some respects not necessary to be noticed here. Acts 1863-64, p. 7. By the General Statutes of 1865 and of the Revised Statutes 1879 it is provided: When lands are to be attached the officer shall describe the same in his return, and declare that he attached all the right, title, and interest of the defendant; "and shall also file in the recorder's office of the county where the real estate is situated an abstract of the attachment, showing the names of the parties to the suit, and the amount of the debt, the date of the levy, and a description of the real estate levied on by the same, which shall be duly recorded in the land records, and the recording paid for by the officer, and charged and collected as other costs;" (chapter 6, § 420;) and the officer shall, moreover, give notice to the actual tenants, if any, at least 10 days before the return-day of the writ. That part of the...