70 Mo. 457 | Mo. | 1879
Bojer instituted this proceeding to set aside, as a cloud upon his title, a deed obtained by Tucker as the result of a sale, under execution, of certain land, sold as the property of one Irvin Walley. The indebtedness in favor Eiggs and Swift and against Walley, and upon which judgment was rendered and execution issued, existed on the 7th day of February, 1873, when the deed from Walley to his brother-in-law, Boyer, was made. On the 27th day of February, 1873, suit was brought by Bates county against Smith, collector, of that county, and his spreties, Walley among the number, for the recovery of $45,000 — alleged to have been collected by Smith and
These allegations of the answer were denied, and, upon final hearing, a judgment was rendered setting aside the deed of Tucker, and vesting whatever title he acquired, by reason of the sheriff’s deed, in the plaintiff, Boyer.
We regard it as altogether immaterial whether Tucker was apprised of certain irregularities in the partition proceedings, and of the intention of the parties in making the five quit claim deeds’ to correct whatever mistakes may have occurred in those proceedings. Nor is it at all important that Tucker purchased the land “ on a speculation,” and for the small sum of $23. The effect of the sheriff’s sale and deed were to pass to Tucker whatever right, legal or equitable, Walley had in the land. Tucker’s rights in the premises were of just as high a nature as though he had been a creditor of Walley at the time of his purchase. Ryland v. Collison, 54 Mo. 513. If the transaction between Boyer and Walley was a fraudulent one, then a resulting trust immediately arose in favor of the creditors of the latter, which trust could as well bo enforced in favor of Tucker, as of any creditor. The paramount question then, in this case, is, whether the fraudulent purpose charged in Tucker’s answer, really existed. We have no doubt that it did. Either Boyer’s arithmetic, or else his memory, must be greatly at fault, because, with all his efforts in that direction, he was not able to show himself the possessor of anything like the sum of money he says ho paid Walley for the land.
hie claims to have paid $4,000 ; $1,500 in cash, $1,100 in an account owing to him by Walley for cattle, $500 in a school debt, which he states he assumed, and to have given Ins two notes, one fbr $70Q, and the- other for $200, which he
3 or 4 cows at $30 each in fall to butchers at La Cygne, $120
1 horse to Grigg, ------- 75
1 horse to Brown,. 65
300 bushels of wheat to two or three different merchants at La Cygne, Kas., whose names he does not know, - - - - - - - - - 300
200 bushels of rye to same parties, - 100
Making - - $660
Of this amount he says he paid for taxes $80 or $90; borrowed money, $50 to $75; say $80 plus $50, 130
Leaving.- 530
This, with the sum from his father, - - - 450
Would make but o co as
Leaving a deficit of ($1,500 — 980) • - o o
In another part of his testimony, we find him stating' that notwithstanding the large amount of money he had on hand in 1873, just before he bought the land of Walley, that he was repeatedly dunned for, and compromised a little debt .of $3 or $4; and when sued by Nichols for $8, begged and obtained two months additional time, for which extension he paid interest. Nor is he more fortunate in his testimony as to the payment of the note for $700 which fell due in six months. In order to raise the money to pay this note he says he sold:
1 horse to Erwine.$80
2 or 3 cows at $20 each to butchers at LaOygne - 60
10 or 12 hogs to hog dealers - 60
2 steers to Robert Kyle ..... 40
Couple loads corn at LaCygne - - - - 15
Making only - - - - - $255
But he says he never sold steers to Kyle but once, and that he sold them to pay the $700 note, and not the $1,500 in cash. In another part of his testimony, however, he states that it was early in the spring of 1872, that he sold the steers to Kyle. Now these statements will not bear scrutiny; for the note for $700 was not in existence .for nearly a year after the last named date; and thus the singular spectacle i« presented of money being raised to meet
He admits, however, that the date of the lease was left blank, and that he filled it in.. Boyer also corroborates this statement as to the time the lease was assigned to him by Walley. But a copy of-the lease is before us and we discover no such assignment, and at any’rate we prefer the testimony of Evans and Henshaw, who ■ are disinterested witnesses. If their testimony is to receive the preference as to credibility, then it is truly remarkable, if the transaction between Boyer and Walley was bona fide, that the latter should venture, as the owner, to lease land three weeks after he had conveyed it by warranty deed to another. Even laying the date of the lease aside, there is
When we consider the evidence in this ease, a resume of which .has been given, we are at a loss to discover on what theory the court below acted in its rulings, unless it was that the smallness of the consideration paid by Tucker was not without its influence. This consideration, as before stated, possesses no weight with us, nor should it under the circumstances detailed. He was guilty of no fraud in purchasing at sheriff’s sale, except it be fraudulent.to participate in a species of sale to which the law, in its wisdom, has attached the greatest publicity and' invited the largest competition.
Besides, Tucker is not asking equitable relief, and even if he were, his equities, if we are to regard the evidence contained in this record, need not shun comparison with those asserted on behalf of the plaintiff. The j udgment is reversed and the petition dismissed.