Wells v. Estes
| Decision Date | 20 February 1900 |
| Parties | WELLS v. ESTES, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. Reuben F. Roy, Judge.
Affirmed.
Pearson & Pearson for appellant.
(1) Plaintiff is a party to the warranty deed, conveying to the defendant the "Coles tract" of land. She is therefore estopped from setting up a claim for dower as against Estes, her grantee in said warranty deed, and from claiming that because such deed has been declared fraudulent as against the creditors of her husband and at the instigation of his creditors, it is also void as against her. A deed though fraudulent as to creditors is valid as between the parties thereto. Stevenson v. Edwards, 98 Mo 622; Thompson v. Cohen, 127 Mo. 215; Larrimore v. Tyler, 88 Mo. 661; Devorse v. Snider, 60 Mo 235. (2) Plaintiff is estopped from claiming dower in the 200 acre tract because she was bound by the recitals in trustee's deed of Monroe to Estes. R. S. 1889, sec. 7103; Walters v. Senf, 115 Mo. 524; Tyler v Hall, 106 Mo. 313; White v. Stephens, 77 Mo. 452; Vail v. Jacobs, 62 Mo. 130; Lanier v. McIntosh, 117 Mo. 508; Hume v. Hopkins, 140 Mo. 65; Schanewerk v. Hobrecht, 117 Mo. 22.
J. D. Hostetter for respondent.
(1) As to the 200 acre tract the evidence clearly shows and the trial court found, that the debt secured by the 1875 deed of trust had been previously paid off, hence when the sale took place under said deed of trust, no title passed, because the debt is the life of the mortgage, and having been extinguished, the sale was a nullity, and carried no title whatever to the purchaser. Baker v. Halligan, 75 Mo. 435; McClure v. Logan, 59 Mo. 234; Weston v. Clark, 37 Mo. 568; Huff v. Morton, 83 Mo. 399 at 402; Huber v. Pickler, 94 Mo. 382; Durette v. Briggs, 47 Mo. 356, It must be remembered that Estes was the owner of the debt, and had caused the sales to be made by the trustees, and purchased at both sales, and announcement was made publicly in his hearing, just previous to the sale of the 200 acre tract on behalf of Mrs. Wells, that the debt having been previously paid off by the proceeds of the sale under the 1873 deed of trust, she claimed her dower against the purchaser, in said tract of 200 acres, then about to be sold. Davis v. Green, 102 Mo. 170; Blevins v. Smith, 104 Mo. 583. (2) The rule is, in general terms, that a party to a fraudulent conveyance is estopped from urging its illegality, in order to avoid its effect. But this rule applies only to the participants in the fraud; in this case to Mr. Wells and Mr. Estes. It is the penalty for their fraudulent conduct. It is not the policy of the law to aid either the fraudulent grantor or the fraudulent grantee. But Mrs. Wells was not a fraudulent grantor. She had no creditors to defraud. She owed no one. The joining in a deed with her husband to Mr. Estes, did not make her a party to any fraud, even though said deed was afterwards set aside at the instance of her husband's creditors. When set aside, it was the same as if no deed had ever been made, particularly in view of the trial court's finding, that Mr. Estes had "parted with no valuable or legal consideration." She could only convey her dower by a joint deed with her husband. While her husband might not be able to destroy and annihilate such deed, on account of his participation in the fraud, the creditor can, and when done, it operates so as to restore her dower.
This is a suit by plaintiff who is the widow of Lemuel M. Wells, deceased, against the defendant for the admeasurement of her dower in three different tracts of land to which her husband owned the title in fee during their marriage, and which are owned by and in the possession of defendant.
In this litigation the tracts of land are designated as follows: One tract of one hundred arpens, another of two hundred acres, and a tract containing three thousand and one acre, called the "Coles tract."
Plaintiff was sixty-two years of age at the time of the trial, which resulted in a judgment in her favor that she is entitled to dower in all three of said tracts of land, and for the sum of $ 9,356.55 damages. The court found that the rental value of the three thousand and one acre tract was two dollars per acre for each year, and of the two hundred acre tract one dollar and fifty cents per acre, and of the one hundred acre tract nothing.
After unsuccessful motion by defendant for a new trial he appeals.
The ruling and judgment of the court with respect to the one hundred arpen tract is not complained of, on this appeal, so that no further notice need be or will be taken of the ruling of the court with respect to that tract.
As to the two hundred acre tract the record discloses the following state of facts:
On September 4, 1873, Lemuel M. Wells borrowed from Aaron McPike the sum of $ 6,233.33, for which he executed his note due one day after date, bearing ten per cent per annum and, to secure its payment he and his wife the plaintiff, executed their certain deed of trust to D. L. Caldwell, trustee for said McPike, on certain land therein described, containing one hundred and ninety-seven acres. This deed of trust was duly recorded in the recorder's office of Pike county where the land lies, on September 13, 1873. Thereafter, on November 18, 1875, Lemuel M. Wells, his wife, the plaintiff, joining therein with him, executed to Elijah Robinson, trustee for McPike, a deed of trust on the two hundred acre tract of land in controversy, an entirely different tract, as additional and further security for the payment of said note.
In March, 1877, McPike obtained in the circuit court of Pike county judgment against Lemuel M. Wells for the amount then due on said note, the lien of which judgment was thereafter kept in force by revivals of the judgment lien.
Various payments were made by Lemuel M. Wells upon this debt until October 15, 1889, on which date the balance remaining due thereon was $ 5,546.35, when the note was assigned by McPike to defendant Estes, he paying McPike the full amount then due thereon.
Robinson the trustee in the second deed of trust declined to act, and in accordance with its provisions the sheriff of the county, Gilbert Monroe acted in his stead, and he and Caldwell advertised the property for sale under the respective deeds of trust on the 7th day of October, 1890. The sale by Caldwell, trustee in the first deed of trust, was made first, at which the property brought the sum of $ 7,289, Estes himself becoming the purchaser. The proceeds of this sale amounted to more than a sufficient amount to pay off the debt, interest, the costs attending it, and the cost of advertising the property for sale under the second deed of trust; and when the property was offered for sale later in the day under the second deed of trust, these facts were publicly announced at the place of sale. But Estes caused the sale of the two hundred acre tract to proceed, and bought it in for one dollar per acre, and received a deed from Monroe, the acting trustee in the second deed of trust, purporting to convey to him all the interest of the grantors in said land.
With respect to the three thousand and one acre, or "Coles tract," it appears that on May 18, 1887, Lemuel M. Wells, the plaintiff, his wife joining with him, conveyed this tract to Fielden Estes, the recited consideration in the deed being $ 48,880.03. Thereafter on December 8, 1892, at the instance of Charles Martin et al., creditors of Lemuel M. Wells, the Pike County Circuit Court rendered a decree in the suit of said Martin et al. v. Estes, annulling and setting aside said deed on the ground that the same was made in fraud of the creditors of said Lemuel M. Wells, in which the court found that Estes paid no consideration for said land, was a party to said fraud, and acquired no title to said land by said deed.
It is insisted by plaintiff that the bill of exceptions was not filed in time, and that no matter of exception should be considered on this appeal.
It appears that on the 30th day of June, 1897, the court, by an entry of record, allowed defendant until the 15th day of September next following to file his bill of exceptions, and while the record shows that the bill was signed by the judge in 1897, and, on the 9th day, it does not show of what month, the name of the month being omitted, but the record also shows by an entry made thereon by the clerk of the court at the time, that the bill was filed on the 10th day of September, 1897, thus showing that it must have been signed by the judge, within the time allowed for its filing.
It is not absolutely necessary that the date of the signing of the bill appear therefrom or that it be dated at all, as the date of the filing must control, for it makes no difference when signed if filed within the time fixed by the order of court, which seems to have been done in this case.
Defendant contends that as the deed from plaintiff and her husband Lemuel M. Wells to the "Coles tract" of land is a warranty containing the usual covenants, she is estopped from claiming dower in the land as...
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