White v. McPheeters

• Decision Date: 30 April 1882
• Citation: 75 Mo. 286
• Parties: WHITE v. MCPHEETERS, Appellant.
• Court: Missouri Supreme Court

75 Mo. 286

WHITE

v.MCPHEETERS, Appellant.

Supreme Court of Missouri.

April Term, 1882.

Appeal from Macon Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Thos L. Anderson and W. P. Harrison for appellants.

The claim of Mrs. McPheeters to the property, and its proceeds, if sold, was superior to that of the creditors of Joseph H. It was purchased with her money, and the creditors of her husband had no claim, legal or equitable, to it, or to property in which it might be invested. Joseph H. McPheeters had no interest in the property by virtue of the deed of trust to Jno. T. Redd, except a contingent one. His interest was not vested; it was contingent, dependent on the will and act of Ann W. If she chose to sell the property during her life, she could, by the express terms of the deed, do so; and when sold, the proceeds were to be held for her sole use. Under the power reserved by her in the deed, she made the sale to Whaley, and this determined the contingent interest of Joseph H. In the deed of trust to Redd, the grantor, Ann W., conveys her own property (in effect a voluntary gift) to be held in trust for her use for life, with remainder in fee to her husband, subject, however, to the contingency of her being the longest lived, and in the event of his death before that of the grantor, then to be held in trust for her. And further, should the said Ann W. and Joseph H., during their joint lives wish to sell, then, she may do so, and the trustee is to convey to the purchaser by them designated. 2 Wash. Real Prop., 224.

Chas. A. Winslow also for appellants.

John T. Redd for respondents.

1. The deed created in Joseph H. McPheeters an estate in remainder in the equitable fee. 1 Hill. Real Prop., (3 Ed.) p. 512, § 1; 2 Wash. Real Prop., (3 Ed.) pp. 500, 501; 4 Kent Com., (5 Ed.) 197, 198. A vested, not a contingent remainder. 2 Wash. Real Prop., 502, 506, 509, 526; 4 Kent Com., 201, 202, 203, 205; Aubuchon v. Bender, 44 Mo. 566; Hill Trustees, 524, 525; Clapp v. Stoughton, 10 Pick. 463; Stone v. Massey, 2 Yeates (Pa.) 369; Ives v. Legge, 3 T. R. 488n; Doe v. Perryn, 3 T. R. 488.

2. The remainder in fee in Joseph H. McPheeters, whether vested or contingent, by his deed of July, 1873, passed to and vested in Edward Whaley, and by the deed of Whaley and wife passed to and vested in Mrs. McPheeters, and by her will passed to and vested in defendants Susan and Ann W. Whaley. 2 Wash. Real Prop., 512, § 20, 522, § 4; 4 Kent Com., 261. It is subject to alienation by statute. Gen. St. 1865, p. 444, § 1; Ib., p. 528, § 1. It was subject to the payment of McPheeters' existing debts when he conveyed to Whaley. Gen. St. 1865, p. 636, § 1.

3. The conveyance by Joseph H. McPheeters of his estate in remainder to Edward Whaley, being, as shown by his testimony and the testimoney of Whaley, without consideration, and the facts being admitted that said conveyance included all his real estate, and that he was largely indebted, and that the deed was voluntary, the law presumes that he made it with the intent to hinder, delay and defraud his existing creditors, and it was void under the provisions of 13th Eliz., chap. 5, as to existing creditors, and under 27th Eliz., chap. 4, was void as to subsequent purchasers. Under sections 2 and 3 of chapter 107, of General Statutes 1865, such a deed is declared void as to both creditors and purchasers, prior and subsequent. Gen. St. 1865, p. 439; Townshend v. Windham, 3 Ves. Sr. 243; Potter v. McDowell, 31 Mo. 69; Pepper v. Carter, 11 Mo. 544; Robinson v. Robards, 15 Mo. 466; Reed v. Pelletier, 28 Mo. 177; Gamble v. Johnson, 9 Mo. 597; Payne v. Stanton, 59 Mo. 160; 1 Story Eq., §§ 353, 354, 355, 357, 359; Boyd v. Dunlap, 1 John. Ch. 483; Reade v. Livingston, 3 John. Ch. 500; Bayard v. Hoffman, 4 John. Ch. 452; Wood v. Jackson, 8 Wend. 9; Sexton v. Wheaton, 8 Wheat. 229; Gilmore v. Land Co., Peters C. C. 460. The deed having been, in contemplation of law, made with the intent to hinder, delay and defraud existing creditors, Whaley, the grantee, took the estate in remainder, subject to a trust in favor of the existing creditors. Bobb v. Woodward, 50 Mo. 101; Herrington v. Herrington, 27 Mo. 560; 1 Story Eq., §§ 350, 449; 2 Story Eq., §§ 980, 1265. If McPheeters did not contract to sell to Whaley, and Whaley did not contract to purchase from him, his interest in the property, and if the deed of July 23rd, 1873, was not intended by the parties to pass any interest in the land except the interest of Mrs. Ann W. McPheeters, and if Joseph H. united with her in said deed for the sole purpose of enabling her to convey her interest, then the remainder of Joseph H. unintentionally and by mistake passed by said deed to and vested in Whaley subject to an implied trust in favor of McPheeters, and, a fortiori, in favor of his existing creditors. Hill Trustees, 206; Ramsden v. Hylton, 2 Ves. Sr. 225; 1 Story Eq., §§ 143, 144, 145; 2 Story Eq., §§ 1195, 1219.

NORTON, J.

This suit, which is a proceeding in equity in the nature of a creditor's bill, to subject to sale for the payment of certain debts of Joseph H. McPheeters, mentioned in the petition, block 74 in the city of Palmyra, was instituted in the Marion county circuit court, and being transferred from the said court, by change of venue, to the Macon county circuit court, was there tried and a decree granting the prayer of the petition was rendered, from which defendants prosecute their appeal to this court.

The following are undisputed facts in the case, viz: The said real estate was originally owned by Joseph H. McPheeters, who, in 1864, conveyed the same to his wife, Ann W. McPheeters, in consideration of $2,100, which came to his said wife as her separate property from her father's estate. In April, 1865, Mrs. McPheeters, her husband joining with her, conveyed the said real estate to John T. Redd, as trustee, which, after omitting the formal parts of the deed, contained the following provisions, viz:

“To have and to hold to the said party of the first part, and his heirs forever, upon the following trusts: 1st. In trust for the sole and separate use of the said Ann W. McPheeters, for and during her natural life. 2nd. Remainder in fee simple in trust for the said Joseph H. McPheeters, should he survive the said Ann W. McPheeters, in which event the said party of the first part covenants that he will execute and deliver to the said Joseph H. McPheeters a deed conveying to him the legal title to said real estate, as fully as the same may be held by him under the terms of this deed; but should the said Ann W. McPheeters survive the said Joseph H. McPheeters, then the said party of the first part shall hold said property in fee in trust for the said Ann W. McPheeters; and should the said parties of the second part, at any time during their joint lives, wish to sell said real estate, then said party of the first part covenants that he will, upon the joint request of the said parties in writing, execute and deliver a deed conveying said property to any person or persons designated by them, and pay over the purchase money to the said Ann W. McPheeters, or invest the same in other property, to be held upon like trusts, as said parties of the second part may direct; and the said party of the first part covenants, to and with the said parties of the second part, that he will, in good faith, execute the trust reposed in him.”

None of the debts embraced in the petition were in existence at the time of the execution of said deed to Redd, but all of them were contracted subsequently between the date of said deed and July, 1873, when Joseph H. McPheeters and Ann W., his wife, joined in a conveyance of the property to Robert Whaley, who, in consideration thereof, paid $100, and executed three notes then and there for $1,000 each, and one for $900, payable in one, two, three and four years. These notes were made payable to Ann. W. McPheeters, and in December, 1873, the contract for the sale of the land was rescinded, and Whaley's notes were surrendered; whereupon Whaley and his wife executed a deed conveying said real estate to Mrs. McPheeters in fee for her sole and separate use, Redd, in the meantime, upon the written request of McPheeters and wife, having conveyed the fee to said Whaley. At the time of the conveyance to said Whaley, McPheeters was insolvent and had no other interest of value except his interest in the land conveyed, and owed the debts mentioned in the petition, upon two of which suits had been brought against him, and upon which judgments were rendered soon after the said conveyance was made. Mrs. McPheeters died in 1876, leaving a will, in which she devised the real estate in question to Susan Whaley and Ann W. Whaley, two of the defendants. It also appears from the evidence of both said McPheeters and Whaley that the conveyance made to Whaley in 1873 by McPheeters and wife, was entirely voluntary and without consideration, so far as said Joseph McPheeters was concerned. Whaley testified that he never bought, and McPheeters testified that he never sold his interest, both of them stating that they were of the opinion that he had no interest to...