State ex rel. Mastin v. McBride

• Citation: 81 Mo. 349
• Parties: THE STATE ex rel. MASTIN v. MCBRIDE et al., Appellants.
• Decision Date: 30 April 1884
• Court: Missouri Supreme Court

81 Mo. 349

THE STATE ex rel. MASTIN

v.MCBRIDE et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Jasper Circuit Court.--HON. M. G. MCGREGOR, Judge.

REVERSED.

Galen Spencer and C. H. Montgomery for appellants.

The court committed error in striking out the defense that plaintiff's remedy was restricted to an action on the indemnifying bond. State to use, etc., v. Leutzinger, 41 Mo. 500; Goldsoll v. Watson, 30 Mo. 122; Broadley v. Holloway, 28 Mo. 150. The court erred, also, in sustaining the objections to defendant's testimony, and in directing the jury to find for plaintiff. In questions of fraud a wide range is allowed; any fact, however slight, if at all relevant to the issue, is admissible. Bump on Fraud. Convey., pp. 541, 542, 543, 544, 549, 507, 559; Blue v. Pennison, 27 Mo. 272. Land purchased in the name of another, may be levied on and sold under execution at the instance of any creditor. Dunnica v. McCoy, 24 Mo. 167. A fraudulent conveyance is void at law, as well as in equity. Allen v. Berry, 50 Mo. 90.

Phelps & Brown for respondent.

The taking of the bond by defendant did not prevent plaintiff suing the sheriff for wrongful levy. Belkin v. Hull, 53 Mo. 492. The court below properly excluded the testimony offered to show that the sale under the deed of trust was fraudulent, as the plaintiff had a valid title even if the sale was fraudulent, until the creditors of the North Center Creek Mining & Smelting Company defeated it in due course of law, and when defeated, it is not rendered void ab initio, but only from the time of the levy of the execution under which the property is sold. Bump on Fraud. Convey., 465. For that reason a creditor cannot levy upon property which the fraudulent grantee has converted from realty into personalty, as, for instance, plaster dug from the ground, or stone taken from a quarry. Jones v. Bryant, 33 N. H. 53; Garbutt v. Smith, 40 Barb. 22; Pierce v. Hill, 35 Mich. 194; Bump on Fraud. Convey., 465. The mineral levied on by the defendant in this case having all been dug from the ground after the plaintiff took possession under his purchase, it was not subject to levy on an execution against plaintiff's grantor. A sheriff cannot institute a creditor's suit to reach the proceeds of property fraudulently conveyed, and the proceeds of such sales are not subject to levy and sale on execution against the fraudulent grantor. Lawrence v. Bank of Republic, 35 N. Y. 320. It is conceded, if not, the evidence shows, that the zinc ore levied upon by Sheriff McBride, in this case, was not in existence at the time of the alleged fraudulent purchase or conveyance. It had at no time been the personal property of the grantor. It could not, therefore, have been subject to levy, at the time of conveyance to and purchase by relator. True, it was mined upon the land claimed to have been fraudulently conveyed, but no act of the grantors contributed in any way or part to its production, and a creditor cannot stand by and permit the fraudulent grantee to retain the lands, and yet claim the proceeds thereof produced wholly by the labor or at the expense of the grantor.

MARTIN, C.

This was an action against a sheriff and his sureties, upon his official bond, for the value of certain zinc ore, seized by him under an execution in favor of one N. M. Barney, and against the North Center Creek Mining and Smelting Company. It is alleged in the petition, that said sheriff seized said ore in August, 1880, and sold the same to plaintiff on the 1st day of September, 1880, as the property of said company, to the damage of plaintiff in the sum of $2,776, who was the owner thereof at the time of the seizure and sale.

The answer consisted of a general denial of all matters not subsequently admitted. By way of special defense, it charged that the plaintiff's pretended title was in fraud of creditors, setting up the facts constituting the fraud. It is alleged that the corporation was composed of Thomas H. Mastin, John J. Mastin, Major Henning, Mrs. Henning, Amanda Toms, and one Williams, and that Thos. H. Mastin was president, and William Toms, secretary; that the company was heavily in debt, and that its mining property, of the value of $100,000, was subject to a mortgage in favor of John Wahl & Co., of St. Louis; that the officers and directors of the company, with the intent to defraud the creditors, procured a sale of the property under the deed of trust to David C. Mastin, brother of the president, for the inadequate value or price of $4,180; that said David C., in this purchase by him, acted as the agent for the company, accepting the property and holding it for them and to their use; that after the purchase by Mastin (D. C.) the company retained possession of the lands, mines and machinery, and took out the ore as before. It is added that at the time of the levy and sale by the sheriff, said David C., was not the owner of the zinc levied upon, nor in possession of the same, but that the company was the owner thereof, and in possession of the same. Another defense was pleaded to the effect that, after the seizure by the sheriff, the plaintiff made claim for said ore under the statute; that in response to his claim the sheriff received a good and sufficient indemnity bond from the execution creditor, by reason whereof it is claimed, that the plaintiff cannot maintain this suit, but must pursue his remedy on the said bond. On motion of the plaintiff, this defense about the acceptance and return into court of an indemnity bond was stricken out against the objections and exceptions of defendants. The reply of plaintiff was a general denial of the new matter contained in the answer. The case was tried by a jury. When the defendants came to their evidence the court excluded it all, except such as related to the value of the property. Then, upon the evidence as produced by plaintiff and defendants, the court instructed the jury to find for plaintiff, and their verdict was so rendered, upon which judgment was entered in the sum of the penalty of the bond, with right to execution for the damages assessed in the sum of $2,501.16, from which the defendants appeal. It will be seen from this statement, that the record presents two questions for us to determine. One of them arises from the action of the court in striking out the portion of the answer relating to the indemnity bond; the other springs from the exclusion of the evidence offered by defendants.

It has been held in several decisions of this court, construing our execution laws, that when a claim was made and a bond furnished in response to the claim, the officer making the levy was protected against any action at the instance of the claimant, whose remedy was restricted to the bond. State to use Goldsall v. Watson, 30 Mo. 122; State to use McMurray v. Doan, 39 Mo. 44; Bradley v. Holloway, 28 Mo. 150; State to use Daggett v. Loutzinger, 41 Mo. 498. It will be found on examination of these decisions, that they were rendered in the construction of enactments which prohibited suits against the sheriff, upon said compliance with their provisions, relating to claims and indemnifying bonds. The subsequent case of Belkin v. Hill, 53 Mo. 492, was rendered under a statute which was wanting in any such prohibiting clause; and the court held that in the absence of express prohibition, the claimant was not restricted to his remedy on the bond, but might sue the sheriff for the trespass or conversion. This decision was in construction of the statutes of 1865, and rests upon the principle that the action against the sheriff remains in all cases, unless taken away by statute. The revision of 1879 will have to be construed in obedience to this principle. In examining its provisions on the subject, none will be found expressly prohibiting suit against the sheriff. The next inquiry is, whether sections 2366 and 2367 impliedly prohibit the action. These provisions are new and somewhat unusual. If they, in fact, afford an adequate and complete remedy, to the claimant, the argument that they were intended to supersede all other remedies might then be entertained. But if they fail in this, then the argument that the common law action against the sheriff and his sureties is denied to the claimant by implication fails.

It will be observed that these sections contemplate two bonds after claim has been made; one by the execution creditor to indemify the sheriff and the claimant, the other by the claimant who desires to take possession of the property upon his forthcoming obligation. It is next provided that the sheriff shall return the claim, and the bonds into court on, or before return day of the execution. The clerk is required to enter the matter upon the docket as civil cases are docketed, and it is provided, that “the matter shall, unless continued for cause, be tried at the term at which the claim is returned.” The act provides for pleadings, in respect to the claim by answer, demurrer and reply. It, also, directs the nature and form of the judgments to be rendered. This is a very extraordinary addition to our execution statutes, and it might be instructive as well as interesting to know whence it came. It evidently contemplates a special suit, or proceeding upon the claim returned into court, which is made to take the place of a petition, to be answered or demurred to like any other statement of a cause of action. Viewed in this light, the question arises whether an independent action on the bond will lie while this summary proceeding remains undisposed of.

It is evident that this summary, or supplemental proceeding does not contain or furnish a remedy equivalent to the common law action which it is claimed to supersede. It declares that “if the judgment shall be in favor of the claimant, the court...