Zoll v. Soper

Decision Date30 April 1882
Citation75 Mo. 460
PartiesZOLL v. SOPER, Plaintiff in Error.
CourtMissouri Supreme Court

Error to Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

F. P. Wright, Belch & Silver, E. A. Nickerson and G. W. Houts for plaintiff in error.

John J. Cockrell for defendant in error.

HENRY, J.

Plaintiff sues as the administrator of the estate of Jacobs & Kelly; and in his petition alleges that in April, 1866, he, as administrator of Jacobs & Kelly, obtained a judgment against John Yelton in the Johnson circuit court for $2,554.79, and in May following on an execution issued on said judgment, realized about $1,268; that Yelton had no other property out of which the debt could be made, except an equitable title to the land in controversy herein, sixty acres, which it is alleged, was purchased by Yelton with his own money, but the deed at his suggestion was made to his wife; and it was charged that this was a contrivance to delay and defraud his creditors; that Yelton died intestate in the fall of 1866, and that his widow, Sally, has since intermarried with and is now the wife of Charles Soper. The prayer of the petition is that said real estate be subjected to the payment of said judgment, and that defendant Sally be declared to hold the land in trust for payment of said judgment.

The answer denies all the allegations except that Sally Soper has the legal title to the land, and alleges that Francis M. Cockrell, William Cornetz and William Zoll purchased all the right, title and interest in and to the judgment in favor of Zoll, as administrator, and are the real parties in interest, and that plaintiff ought not to maintain this action. By his replication, this allegation is denied by plaintiff. The court on hearing the cause made a decree, adjudging that the judgment aforesaid was a lien on the land, and that the land be sold to satisfy the balance due on the judgment, and that out of the proceeds the sheriff should first satisfy the costs of this suit, and then pay to plaintiff the balance due on the judgment with ten per cent interest thereon from the 7th day of September, 1866.

1. FRAUDULENT CONVEYANCE: action to set aside: limitation.

The bill of exceptions having been stricken out, on motion of respondent, we are restricted in our examination of the cause to the record proper. That the petition states a case of fraud against Sally Soper and her former husband, John Yelton, is clear; and while in such a case, the creditor who seeks to subject the land to the payment of his judgment, might have the land seized and sold under execution, he may in the first place resort to equity, to have the fraudulent deed set aside in order to remove the cloud from the title, and sell the land to the best advantage. It is contended, however, that the judgment having been rendered in April, 1866, and this suit not having been instituted until August, 1873, the lien of the judgment had expired, and, therefore, plaintiff could not maintain this action. By section 11, page 791, Wagner's Statutes, volume 1, “Executions may issue upon a judgment at any time within ten years after the rendition of such judgment.' While the right to have an execution on the judgment...

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68 cases
  • Merz v. Tower Grove Bank & Trust Co., 35769.
    • United States
    • United States State Supreme Court of Missouri
    • 7 Julio 1939
    ...S.W. 723; McFarland v. Bishop, 282 Mo. 534, 222 S.W. 143; Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116; Zoll v. Soper, 75 Mo. 460; Looney v. Bartlett, 106 Mo. App. 619, 81 S.W. 481; Rowley v. Rowley, 197 S.W. 152; Davidson v. Dockery, 179 Mo. 687, 78 S.W. 624. (2) The ap......
  • Lionberger v. Baker
    • United States
    • United States State Supreme Court of Missouri
    • 31 Octubre 1885
    ...190. Although a creditor may before sale on execution, bring his bill to aid the execution and remove embarrassments to such sale ( Zoll v. Soper, 75 Mo. 460; Kerr v. Kerr, 6 Lea. 225), but after sale on execution, the bill will not lie as a bill to remove a cloud and cannot be maintained b......
  • Bullock v. Peoples Bank of Holcomb, 38368.
    • United States
    • United States State Supreme Court of Missouri
    • 27 Agosto 1943
    ...v. Williams, 26 Mo. 190; Bunny v. Taylor, 90 Mo. 71; Turner v. Johnson, 95 Mo. 431; Charles v. White, 214 Mo. l.c. 202; Zall v. Soper, 75 Mo. 460; Larimore v. Tyler, 88 Mo. 661; Lewis v. Insurance Co., 7 Mo. App. 112; Roselle v. Harmon, 29 Mo. App. 569; McFarland v. Creath, 35 Mo. App. 112;......
  • Reasor v. Marshall
    • United States
    • United States State Supreme Court of Missouri
    • 9 Mayo 1949
    ...... can question the validity or effect of his acts. State. Bank v. Lillibridges, 293 S.W. 116; Zoll v. Soper, 75 Mo. 460; Brown's Admr. v. Finley, . 18 Mo. 375. (16) Since respondents had possession of the. land, all persons, creditors and ......
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