| Mo. | Feb 15, 1875
delivered the opinion of the court.
This is a proceeding in the nature of a bill in chancery, brought against the defendants, who are husband and wife, by which it is sought to subject certain real estate held by the wife, to the debts of the husband, on the grounds that he was in embarrassed circumstances, and largely indebted, and in order to hinder, delay and defraud his creditors, both prior and subsequent, caused the real estate which he boiaght from time to time, to be conveyed to his wife; that during the time that he was thus engaged, that is to say, from the year 1859 to the year 186-, he did business in the name of his wife, borrowed money, dealt-as a merchant in goods, wares and merchandise, falsely and fraudulently representing tlui his
The defendants filed separate answers. That of the husband, Mahlon Ashbrook, admitted that he purchased the real estate in question and had the conveyance made to his wife ; but claimed that this was done without any fraudulent intent, and that the purchase of such property was made with money which the wife derived through her father’s will, and with the profits which he had realized by employing this money in business he had bought the property sought to be charged, and made the improvements thereon. He also admitted his insolvent condition from the time of his'arrival in St. Joseph up to the time of filing his answer, and of his carrying on business in his wife’s name, but denied that this was done to defraud his creditors, etc. The answer of the defendant, Mary A. Ashbrook, was of similar purport to that of her husband ; and she admits that she knew that he was embarrassed and was using her name, both in the sign over his store, and also in buying goods, etc; but that she protested against such use of her name, etc., etc. The new matter of these answers was denied.
. The court, upon hearing the testimony, gave judgment for the recovery of the plaintiff’s debt, and decreed a sale of the property mentioned iii the petition; but directed that such sale should be subject to a deed of trust executed by the defendant to secure Adam Flesher and others on a debt of the husband, and that out of the proceeds of such sale should be paid, first to the wife the sum of $3,000, then to the husband $1,000, for his homestead, and then that the plaintiff’s debt should be satisfied.
The will referred to in the answers of the defendants, bequeathed eighty acres of land in Hocking County, Ohio, to
Treating the precatory words of the will as words of command, there can be no doubt that it was the duty of the executor to have re-invested the proceeds of the sale of the Ohio lands in other real estate, in conformity to the terms of the will; and that such real estate, when thus purchased, whether from the proceeds of the eighty acre or one hundred and sixteen acre tract, would be exempt from sale for the debt of the husband. Because the proceeds of the last named tr-act, when re-invested, as desired by the will, would have been the separate property of the wife for life, with remainder to her children. And it is equally certain, that land purchased out of the money arising from the sale of the tract first named, being conveyed in the name of the wife, would vest the fee in her, and would also be exempt under that section of our law respecting married women, which prohibits the sale of land acquired by the wife prior to marriage or during coverture, by gift, grant, devise or inheritance, for the satisfaction of the sole debts of the husband. (Wagn. Stat., 935, § 14.) And the prohibitions of this section apply as well to lands conveyed to the wife in the ordinary way, as to those settled with more formality, to her sole and separate use. (Hale vs. Coe, 49 Mo., 181" court="Mo." date_filed="1872-01-15" href="https://app.midpage.ai/document/hale-v-coe-8003406?utm_source=webapp" opinion_id="8003406">49 Mo., 181.)
I do not feel warranted, after a careful perusal of the evidence, in arriving at the conclusion that the wife is justly chargeable with any complicity in the fraud alleged against herself and husband. But on the other hand, I have been unable to resist the belief, or avoid the impression which that evidence has produced upon my mind, that it was the
I cannot, however, fully concur in the result reached in that decree, in so far as it postponed the demand of the plaintiff to the incumbrance of those who were not parties to the suit, and were not in any manner making any assertion of their rights, and in so far as it ordered the payment to the wife of $3,000.
There would appear to be no error in allowing to the husband a certain sum for the purchase of a homestead, nor in decreeing that this amount should have priority over plaintiff’s claim; because, notwithstanding the evident designs which he entertained towards his creditors, this could not deprive him of the benefits conferred by the law as to all debts except those contracted prior to its passage ; and the debt in question was not contracted until December, 1st, 1866, long after the passage of the law which exempted homesteads from execution. And although the designs of the husband were very apparent in respect to his creditors, this should not be allowed to prejudice the rights of his wife under the terms of her father’s will. But while it is undoubtedly true that a court of equity will throw safeguards around, and see to the proper application of a trust fund, and will follow it so long as it can be clearly and distinctly traced, yet it is equally true that when the means of its identification fail, the powers of the court in reference to that fund must also cease. (2 Sto. Eq. Jur., §§ 1210, 1258-9; 3 Sugd. Vend., 270, 272, and cases cited.)
And just here the chief difficulty in this case arises ; it being impossible to trace the trust fund with anything like satisfactory certainty, and the testimony of Ashbrook himself sheds but little, if any, light upon the subject, and he of all
The judgment will be reversed and the cause remanded ; Judges Vories and Hough not sitting;