Thomas v. Mathews

• Decision Date: 31 October 1872
• Citation: Thomas v. Mathews, 51 Mo. 107 (Mo. 1872)
• Parties: JOHN L. THOMAS, Plaintiff in Error, v. THOMAS MATHEWS, Defendant in Error.
• Court: Missouri Supreme Court

51 Mo. 107

JOHN L. THOMAS, Plaintiff in Error,

v.THOMAS MATHEWS, Defendant in Error.

Supreme Court of Missouri.

October Term, 1872.

Error to Iron Circuit Court.

John L. Thomas, pro se.

Fisher & Rowell with J. J. Williams, for Defendants in Error.

ADAMS, Judge, delivered the opinion of the court.

This was an action in the nature of a Bill in Equity, to set aside an alleged fraudulent conveyance, charged to have been made by Robert Mathews to his brother, the defendant, in the year 1855, to defraud creditors prior and subsequent.

The answer denied all fraud and set up the statute of limitations of ten years after the making of the deed, and before the commencement of the suit.

On motion of the plaintiff, that part of the answer setting up the statute of limitation was struck out and the defendant excepted.But the whole case is now before this court with the evidence preserved in a bill of exceptions, and we will consider the case as though no such motion had been made or acted on.If there was any fraud in the conveyance from Robert Mathews to his brotherThomas Mathews, it was consummated at the time of the execution and recording of the deed in 1855.In actions for relief on the ground of fraud, the statute of limitations commences to run from the discovery of the fraud; and where the fraud grows out of realty or the conveyance of realty, ten years constitute the bar, and in regard to personalty, five years.SeeHunter, et al., vs. Hunter, 50 Mo., 445, and cases cited.

There was no pretense that the alleged fraud, if any, was concealed and not...