Woolfolk v. Kemper

• Decision Date: 13 June 1888
• Citation: Woolfolk v. Kemper, 31 Mo. App. 421 (Kan. App. 1888)
• Parties: CHARLES T. WOOLFOLK, Appellant, v. M. P. KEMPER, Respondent.
• Court: Kansas Court of Appeals

31 Mo.App. 421

CHARLES T. WOOLFOLK, Appellant, v. M. P. KEMPER, Respondent.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Johnson Circuit Court, HON. CHARLES W. SLOAN, Judge.

Affirmed.

The case is stated in the opinion.

SAMUEL P. SPARKS, for the appellant.

I. The plaintiff was given a legal remedy by statute to subject the property to sale for the purchase money. Rev. Stat., sec 2345.

II. The death of Kemper and insolvency of his estate prevented a resort to a court of law. In such case equity will interfere when the remedy is inadequate at law. Cass Co. v Green, 66 Mo. 478.

III. In cases where it is doubtful whether courts of law can give relief, equity will retain jurisdiction. West v Wayne, 3 Mo. 16; Biddle v. Ramsey, 52 Mo. 153.

IV. Insolvency is one of the peculiar heads of equity jurisdiction. Freeman v. Freeman, 9 Mo. 763.

V. Where a creditor obtains judgment against a party, and there is a return of nulla bona, such creditor may maintain an action in equity, to have a conveyance of personal property to his wife, set aside, to the end that the same may be sold on execution against the husband, and his bill made a case for equitable jurisdiction, not dependent on any statute. Chardavoyne v. Galbreath, South. Rep. 771. Equity will entertain jurisdiction on the want of a common-law remedy; for there may be such a remedy; it may be inadequate, for on the exercise of this jurisdiction often depends the exercise of a sound discretion in the court. Brush Electric Co., 7 A. 774.

VI. It follows that, while there is no such thing as a lien at law in favor of a vendor of personal property, yet there exists an equity in his favor in such circumstances as was developed in this case, and the judgment should be reversed.

VII. This case is somewhat analogous to the case where a judgment is a lien against the interest of the husband in the lands of the wife, and the lands be sold in partition, the judgment will become an equitable lien on the husband's interest in the proceeds of the sale. Ellsworth v. Cook, 3 Paige Ch. 643; Nuincewiez v. Cahn, 3 Paige Ch. 614; Flint v. Rawlings, 20 La.Ann. 557. The above is a given instance showing that, while legally a creditor's right to his debt and the security therein may be changed by circumstances he cannot control, yet courts of equity will not leave him remediless. Overton on Liens, 31.

No brief for the respondent.

ELLISON J.

Plaintiff sold a brood mare to James W. Kemper for seventy-three dollars executing his note for sixty-five dollars of the purchase money. Some small payments were made and Kemper died leaving an estate of less than four hundred dollars, in value, when defendant, who is his widow, applied for an order from the probate court under section two, Revised Statutes, directing that no letters of administration be granted, as the estate did not exceed in value the sum allowed her, as the widow, by law. Such order was made and the property directed to be turned over to her, including the mare so sold to her deceased husband. Defendant claims the mare and refuses to pay the balance of the purchase price.

Plaintiff filed his bill in equity in the circuit court, setting up the foregoing facts and asking that he be declared to have a lien on the mare, and that it be enforced, and for other proper relief. A demurrer to the bill was interposed and sustained, and we think properly.

The section of the statute giving a vendor a right to hold personal property for the purchase price is as follows " Sec. 2353. ...