*1 Gladys Appellant, Administratrix Buckley, Maupin, Florence A. N. F. the Estate Welborn, Jordan, Jordan, Ella M. J. Gladys husband, L. V. husband, her her Maupin, Maupin, Trustee, and W. Trustee. 125 W. C. A. G. S. Gregory, Gregory, (2d) 820. One,
Division 1939. March *2 plaintiff. T. and Bussell C. Owen Garnett Musser, Musser & If. M. D. Hackler and Abner for Chas. defendants. *3 FERGUSON, equity, C.—This a suit in nature of a alleged aside conveyances creditor’s to set certain bill, subject land, County, and of payment situate Johnson land said to the alleged indebtedness, original grantor, of an of to the petition plaintiff herein. Defendants’ demurrer was sustained. plead whereupon refused” judg- Plaintiff “declined and to further petition plaintiff dismissing appealed. and was entered ment Gladys Maupin, are administratrix of estate The defendants of Jordan, Ella Welborn, daughter M. of deceased', Welborn, N.A. Gladys Jordan, husband, Maupin, her J. F. a daughter also of L. C. A. Welborn, Maupin, (in her husband Y. trustee Gregory, (in W. trustee trust), Gregory, G. another of and deed of deed County. was tried the Circuit Court of Johnson trust). The cause petition lengthy give we shall endeavor but to substance they allegations. We facts are pertinent state Welborn, a resident of petition. A. N. Johnson died, in the intestate, County, widow,” A “leaving 26, November 1933. daughter, no Gladys lawfully Maupin appointed administratrix,” “was of Wei- estate, by County bom’s the Probate and Court Johnson was ‘‘ lawfully appointed suit was filed the administratrix the time this plaintiff all times was resident said estate.” At mentioned agricultural County engaged husband in “and with her Johnson pursuits.” “requested contracted February, 1927, Welborn In washing him and do his plaintiff furnish room and board to necessary required, from other services as and to render such boarder him for his and convenience time to time comfort agreed pay plaintiff compensation” . . reasonable . “plaintiff agreed,” “pursuant which consented and therefor, to arrangement” plaintiff Welborn “resided with the to said laundry board, occupied room and furnished his washing, necessary from, and services make him comfortable and such other time, day 10th 1933.” From the January, after said until the January 10, part December, 1931 . . . until “latter ill” and in to the aforesaid services rendered Welborn was by plaintiff addition she “cared for and nursed Welborn his sickness.” all the services so It is that the reasonable value of rendered “brought April 20,1931, Welborn married and $1450. Welborn On petition alleges plaintiff’s home.” The then that Welborn wife plaintiff became indebted in the additional sum $100 “for board, lodging,” etc., April 20, June, for his wife plaintiff aggregate and that Welborn became amount of indebted to “ which, out, less set $1550 credits later now lawful just says Plaintiff demand his estate.” Welborn’s estate $240, “against aggregating being is entitled to credits ty her claim” “for- provisions dollars for furnished her AYelborn” and $200 “upon promissory “leaving Welborn,” which she to . . . note executed Welborn,
a balance due from the said and consti- *4 against estate,” his tuting “with interest thereon $1310, lawful demand in the sum of January 10, . . . from 1933 . . . the . . payment . she made demand on the said Welborn for date validity claim.” It is then “the her claim of her that of any undisputed defendants, or else.” As one conveyances petition alleges; of land the that “at employment . . . time of the of the and during that very money possessed “was of means, time” AYelborn little and except the owner save and that he was “of a tract of 180 acres of “shortly County; his . land in Johnson that before death . . payment . . intending said Welborn . to avoid the of said and plaintiff, creditors, especially in fraud of his indebtedness to the day 1933,” (Welborn plaintiff, of on 16th died Nov. January, 1933) “conspired contrived the defendant and Ella M. Jordan’.’ put all of his (his daughter) and property “to effects of the out pursuant to, . . . and of his creditors and reach furtherance scheme, conveying he executed a deed of said fraudulent all of his real estate ... any said Ella M. Jordan . . . without valuable for conveyance;’’ conveyed consideration said that said deed 180 acres of land, described, County, subject which all in Johnson securing to two deeds of trust an aggregate sum of that the $1100; deed January 17, was recorded on 1933; that “said deed was fraudulent and as to especially void "Welborn’s creditors plaintiff, and this and purpose was for avoiding made the sole payment just of his and obligations;” debts that on November 1935 (approximately years death)’ two after Welborn’s defendants “Ella M. Jordan and her husband contriving J. F. Jordan .(cid:127) . . conspiring still and carry out said Gladys fraudulent scheme with defendant Maupin J. (daugther Welborn) Maupin, and L. Y. her husband, ...
put property beyond said further reach of Welborn’s creditors” conveyed forty land, any acres of therefor, without consideration persons, to three named who, not made herein; defendants “immed- iately” date, conveyed forty the same land, said acres of any therefor, Gladys without consideration to the defendants Maupin Maupin; and L. recorded, Y. that both deeds though were thereof stated; the date is not date, that on the same November 1935, the Jordans “in furtherance of said fraudulent scheme” and contriving conniving conveyed Maupins “still with” the another forty acres of the Maupins, any land without consideration therefor; thereafter, stated, the date the Jordans “still contriving scheming to defraud the creditors of the said Wel- born” executed and delivered a trust deed of acres land, Jordan, Gregory, title M. W. to which remained Ella to G. Gregory, pretended for A. trustee G. “which said deed of trust $1200,” . . to secure a for the sum “that . note but said Gregorys, them and each of well at the time that said Ella knew void,” etc.; M. to said land was'fraudulent Jordan’s title Maupins that the executed and delivered deed of trust Gregory, land, names, title to which in their to A. acres was C. Gregory Nancy Gregory, “purporting” trustee G. W. E. aggregating Gregorys, parties all the there- $3200 *5 absolutely “plaintiff pro- that cannot insolvent;” . . will be . garnishment lawfully of attachment or of in a law court ceed belonging estate . . . and a suit at rightfully to the said assets and useless judgment to be a futile her claim would reduce law to act;” law, that adequate remedy no to recover “she.has and that . . procedure at law would be and vain . a useless judg- in the its of unable end court law would be to enforce ’’ ment. prayer respects; (1) asks relief six that the court declare the conveying deed Welborn to Ella M. the 180 acres of land Jordan against “to be void the creditors of fraudulent and deceased, . Welborn, A. N. set . that the be aside . same title remaining of the land described in said said deed now in.the Ella M. Jordan be divested out of the said Ella M. and vested Jordan deceased, Welborn, subject payment in the heirs of A. N. to debts;” (2) grantees, that the to Jordans’ deed three named forty land, void;” (3) that acres of the “be declared fraudulent and grantees conveying forty of the the deed from said three said acres forty Maupins to the acres land “be declared void” and title to that Wel- Maupins be “divested out of” “and vested in the heirs”'of “subject (4) payment debts;” the deed from born of his that conveying forty Maupins another to the the Jordans acres land the heirs of be void and title to that land vested in declared Welborn, etc.; in favor of (5) that the court “render against the of Welborn in plaintiff and administratrix estate” re- $1310, and that the be sum of administratrix interest, as will be “to all of said real estate or so much thereof quired sell satisfy plaintiff’s judgment; (6) that required pay and said Gregory of trust be declared “fraudulent and void deeds ’’ her the estate. plaintiff or inferior to demand following grounds: petition Defendants demurred misjoinder parties defendant;, (2) that several (1) that there is a count; petition (3) in one that the have been united causes action equity; a cause sufficient to constitute of action does not state facts improperly have been united. (4) causes of action that several demurrer, is, readily ground of that if the third appears It a cause of not state sufficient constitute petition does facts judgment of sustained the the trial court should equity, be action grounds of the other of. demurrer affirmed and a determination be unnecessary. be would alleged, to be claims, virtue of the contract Plaintiff Though amount, the deceased Welborn. creditor, unliquidated in an it at legal she has established purely a demand her claim else,” anyone by defendants, or undisputed alleges, that it ‘.‘is but useless insolvent, and that would be estate is the Welborn ‘‘ the end a of law would court at law because recover that,, therefore, and contends judgment,” its enforce unable to instance, equity, resort, in the first court may properly she is sus- thereupon her claim adjudicated and, if have’her claim there liquidated in a the deceased to be creditor and she found tained *6 199, amount, have the collection of the adjudged by debt so enforced a setting decree aside the conveyances fraudulent subject- and ing the payment land to the thereof. general
The
rule is that before a creditor can maintain a
suit in
in
equity,
the nature
bill,
of a creditor’s
to set aside a con
veyance
being
in
of creditors,
fraud
he must first exhaust his rem
J.,
edies at
p. 726;
law.
C.
12 R.
636;
[27
C. L.
829, 836; Daggs McDermott, (2d) 46, 327 Mo. 34 S. W. there There legal cases is no claim of equitable cited.] either or lien the instant ease nor is attachment involved. In situa elementary tion it is that the creditor must establish his claim law he equitjL before can have relief his debtor R. L.C. [12 right But herein jurisdiction claims to invoke the 626.] having of a court of without first her claim at established law. point important why decisions out vital and reasons general claimant, having legal equitable either a or lien purely legal, should, property, demand is as a condition whose eqixitj', the maintenance of a suit in in the precedent of a nature judgment or to a bill, required creditors’ his claim to reduce has showing that he make a establish it thereto addition law is, final judgment, that adequate no means at law enforce . . . rule is process in basis of the inadequate. “The real law deter- right that the have issue of indebtedness debtor 729; Kent S.), p. mined L. R. 27 C. *7 jury.” (N. A. [23 578, 108 Buster, 341 Mo. Curtis, 121; Bewes, Inc., 4 v. App. v. Mo. C. to tribunal as- (2d) equity proper W. A of is not the S. court 66.] legal. purely a from one on demand certain what is due to another or A B not. jurisdiction question It has no of whether owes the mere law, the right by jury, at has a to a trial debtor To liability validity demands. measure of claimant’s and claim, a equity maintain to enforce such permit claimant to a bill law, requiring judgment to a at would without it to first reduced be where, by deprive by jury upon question a be to the debtor of trial a a rules of be to such trial. the common he would entitled Ledwidge, 44 N. Ill. E. Copper & Brass Mills v. [Detroit discussing necessity In a claim first established that such be 751.] Curtis, 121, 124, leading App. at Kent v. Mo. law says: equity a assumes judgment, “Unless the claim reduced to any ground jurisdiction, outset, equity of to ascertain at without say adjust merely legal It is no that a claim. answer Insolvency may question. That does debtor is insolvent. not touch good execution, might for a issuing a for not that be useless be excuse a,ct. It judgment would not useless. would But to obtain a at law be fact, with the ascertainment legal right; would ascertain settle right nothing It of trial equity to do. would secure of which has It prevent courts jury jurisdiction. not of would eases becoming for the of suits for un- the forum trial of damages tort; jurisdiction of for liquidated actions for if the ques- demand, on the or on the depend is not to nature exhausted, why, any first "been legal remedies have tion whether subject process inadequate property at final law case where the may debts, damages, a for payment of not a creditor with claim chancery!” first in arising, sue however only creditor, remedy Further, adequate has no who law debt, may whereby he collection maintain a can enforce kind, equity. By reducing his to a suit, this claim subsisting entitled, as a himself creditor at law claimant establishes showing, equity. to invoke the aid of proper court upon [27 judgment, may creditor who has and who nqt “A mere J. 729.] C. right interposi equitable not the ask judgment, obtain a never Adams, Mo. “The credi [Turner 99.] of this kind.” tion law; certain, his claim claim at is not must first establish tor charge fraud therefore, be heard to on his debtor cannot until he, Walker, he is creditor.” first [Crim ascertained it Mo. “A only court of equity 335.] can general interfere with the right and inherent of the debtor to dispose of his at the instigation of Iona creditors, and that it cannot be asserted with fide certainty anyone is an subsisting actual creditor, until a judgment has been obtained on his claim.” Woolen Mills [Kankakee v. Kampe, App. 229, Co. 38 Mo. 234; Hagey, Coleman v. 252 Mo. 102, 127, 158 S. W. Bewes, Inc., Buster, C. 578, 585, 341 Mo. (2d) 66, 108 S. W. 69.]
We are referred to the statement texts, together found in some with the cases in support thereof, cited that, “Equitable the effect generally granted relief will without a judg when such impossible ment attainment, obviously or- unavailing if ob L., p. tained.” R. text, C. But the citation, [12 same 630.] continues: “There is a distinction eases, made in however, some necessity judgment, impossibility between the obtaining judg ment it, holding the uselessness of equitable courts aid may be afforded creditor impossible where it would be him judgment, to obtain him but that it would not be extended to only where his having excuse for not obtained is that *8 ’’ would1be useless. The impossibility attaining judgment a is very generally recognized as an exception a rule that large creditor at must judgment first reduce his claim to a before he S.) 85; can invoke equity (N. the aid of it. enforce L. R. A. [23 14 Jur., p. 697, 698, Am. p. 39; Wait, sec. Convey sec. Fraudulent ances and (3 Ed.), p. 168; Creditor’s Bills Perkins, Pendleton v. 565; 49 Mo. Adler Goldman Williams, Comm. Co. v. 530, 533; Fed. Haworth, Minn, 372, Overmire v. 121; 51 N. W. First National Bank of Eastman, Riverside v. 144 Cal. 77 Pac. As illus 1043.] trating impossibility obtaining judgment a at law ‘‘ alleged briefly debtor, we refer foregoing to two of the citations. The weight authority supports the view that non-residence or absence debtor, fugitive as where he is a justice, obviates the necessity prior judgment of a at law . . . where such non-resi impossible or it impracticable dence absence renders or -to obtain such judgment remedy by a adequate and there no which the debtors property Jur., p. can be reached.” Am. In Pendleton [14 697.] v. Perkins, supra, held, absconded, this court “that when a debtor has personal judgment against him, so no can be obtained and there statutory proceeding property is no which his reached, can 'be a instance, lie in first necessity creditor’s bill will and from the proposition The that the required the case.” creditor should not be resorting, by a at bill, to first obtain law before a creditor’s “unavailing” or, equity if a would be as is sometimes theory that if said, insolvent, “useless” is on the debtor is process unavailing, at law on the that' final would be so shown, go creditor is-entitled to equity into claim, law. at his' having established first the first instance without theory: such supporting in this are cited Three decisions State Dockery, Mo. v. 167; Davidson Luthy Woods, App. Mo. case, first The W. 741. Wright 274 S. (Mo.), Hume v. 78 S. W. we do rule, however Woods, Luthy seems to announce note, on interesting except, it is that it been followed find has “The observed: opinion in the case the writer appeal a second in this case sue right plaintiff question as to the upon passed law was judgment at having obtained a without first faith upon the proceeded appeal. “The in” the former any event, as disturbed, decision, it' should not of that original here no view, my as there was ... In against him. obtained plaintiff should'have equity jurisdiction, ground of appeal first that in the appears judgment at Further law.” it is shown holding that where largely holding on the cases was based might an execution the issue of judgment creditor is insolvent that the equity. Davidson to the suit dispensed prerequisite as a be Dockery, supra, alleged cloud “to an a suit in remove was general-statement In the course of the title” to land. large may go into at the effect that a creditor made to alleges he judgment, where instance, having without obtained first instance, remedy law, at adequate “has no and shows that he law judgment at wholly and a insolvent where defendant supra, Wright, remaining case, Hume v. would be fruitless.” holds, contrary theory but to the support to such no whatever lends fraudulent, conveyance as to set aside that in a suit creditor judgment, attached neither reduced his claim where he had was allegation that defendant upon it, the mere nor obtained a lien alleged debt, and pay the wholly property to insolvent and without invoke the aid of remedy law, insufficient to therefore had no the rule of the reasons for have hereinbefore noted some equity. We therefrom and it follows first established that the claim be *9 may an as be insolvency the issuance of execution that, excuse while judgment at law that to obtain a it cannot be said ing a useless'act and ad unavailing judgment the avails to settle for useless and the meas legal right, as a creditor and establish claimant judicate a nothing do, liability, equity has and with which the ure of debtor’s by equity jurisdiction. jury in cases not of right trial the secures creditor, unliquidated in an claiming a mere to be If one legal grows purely and is a de out of contract amount, claim whose equity, interposition of a court of the mand, invoke permitted be having his bill, first established without by a creditor’s means of creditor, mere subsisting upon himself as a and at law claim wholly alleged insolvent and therefore debtor allegation that unavail at law would be fruitless and judgment upon an execution claim, tort, asserting that one logically follow not ing, it does damages for for personal injuries, allegedly by caused negligence another, would likewise be jurisdiction entitled to invoke the of a court equity, by bill, a creditor’s having without first reduced his judgment, claim to upon allegation that the alleged mere tort wholly feasor is judgment insolvent him and a at against law would, reason, “unavailing” be or “useless?” We are inclined to insolvency mere should not be held to excuse establishment of the at claim and that law the terms “unavailing,” “useless” aptly and “futile” are more correctly applied to the. pursuit process of final at law where the wholly debtor is obtaining judgment. insolvent than to the of a what, Such is we be found, really by lieve will meant majority the vast of the where terms discussing cases are used in the prerequisites to the equity. maintenance such suits in Jur., Am. pp. 699, [14 41, p. 695, (N. S.), sec. sec. 23 L. R. A. p. 88.]
In the instant case no action was taken plaintiff during the alleged lifetime of the debtor to establish her claim at law and this suit in was commenced after death of alleged debtor. The alleged administratrix of the estate and the grantees parties real are made estate defendants and attempts proceed having without first established her against claim reasons, the estate at law. The mentioned, heretofore require for the ments that the in a claimant suit of this nature must first establish claim, remedies, fail, and exhaust his at do law not and are none potent, alleged the less because of the death of the debtor. The claim legal remedy against ample ant’s is as the estate of the deceased in the personal representative against of the as it hands claimant, in his lifetime. Therefore the debtor he can before assert right subsisting proceed as a creditor must first against establish his or demand the estate in claim one the modes by law, is, by obtaining prescribed either on his claim against administrator, in an action in a record, court of and ex hibiting probate for classification in the court, or ob taining against of his claim upon the allowance or demand the estate hearing probate in the presentation per court. Either course adjudication purely legal claim, mits a determination and law of a may any legal representative defense which the make interposed upon have it could have determined a trial debtor permit a estate, creditor of an jury. Since law will on re administrator, having or on covering judgment his claim court, thereon, to sue out an execution probate showing allowed his claim therefore a that he has thus established sub insolvent, creditor, regarded that the estate is will be sisting legal equitable and entitle him to remedies aid an exhaustion adjudicated debt which collection to enforce *10 fraudulently conveyed. Russell, v. 155; 79 Ill. [White lias been
204 Wilcox, 539;
Estes v.
N. Y. 264;
Furbush,
67
v.
Ark.
Williamson
31
545,
Sallie,
Superior Court,
Chambers
Plaintiff relies an observation in Farmers made and Traders Kendrick, Bank 571, (2d) 341 Mo. 108 S. W. 62. Reference- was exceptions which, made instances, there to various in some had been general prior judgment allowed rule that a be law must obtained before resort to equity could had to set aside a fraudulent conveyance exception it is recognized said that one which has been is, that “a having creditor of a decedent without first obtained against against either in debtor his lifetime or demand, may proceed estate as a to set equity aside in a fraudulent conveyance,” citing the note at 103 A. L. R. 555. We here that note maintenance the suit in in equity Farmers & Traders Bank v. Kendrick, permitted ground. was pur on that We understand the port holding be, of the in that case to that if the estate insolvent and validity and amount acknowledged, claim admitted or ease, as it creditor’may proceed equity was then the to set aside conveyance having a fraudulent without first established his against claim estate at law. We later discuss an admission excusing prior claim its However, establishment at law. the fore going given statement is made at the citation and some of the cases notably there cited seem to sustain it in aspect, broadest Alabama its Maryland cases decided in 1852 decided in 1833. case cited, principal decision in the ease Pharis v. Alabama Leachman (1852), 20 Ala. seems to be on the the particular based facts of recognized chancery jurisdiction case and the then of that state. It was a pursue property allegedly bill certain which fraudulently had placed deceased debtor of a the name trustee for children, being the benefit his wife and the debtor’s estate insolvent. primary jurisdiction, case, It held that had in such a aris ing general powers of its in relation out to the settlement and ad jurisdiction of estates and take ministration could the case and probate. withdraw administration estate court of cited, Harvey McDonnell, We not deem the York do New case authority E. as an N. Y. N. the statement. There had per the creditors claim been allowed estate and the representatives propérty sonal had exhausted the “both’ real and had to their personal,” applying which “come hands ... others, intestate, and, among upon plaintiff’s the debts ’’ claim. plaintiff, seeking In that equity,, ease who was the aid of gone legal had first as far as he in law, could and exhausted his rem- edies. Castner, Eq. 697, 31 N. That [Hasten J. case cited.] first Eq. 536, found at 29 N. J. and there it is held when a credi- remedy tor has legal estate,, exhausted his the decedent debtor’s “of seized,” open” which died he court of “should be “may him placed enable to reach have which debtor Eq. 697, pointed hands of others.” At 31 N. it is out that the presented administrator, claim had first been under oath to the ac- *12 knowledged part by validity conclusively in paid him, and its Superior Court, established. v. 85 Ohm Cal. 26 Pac. authority cited perceive for the statement but do not we how it can be right so considered. That case holds that to the have creditor, statute, compel under to the executor or administrator to bring conveyance, a suit to set aside fraudulent the claimant must be a creditor against whose claim- has been the allowed estate. It say that, to keeping suffices the constituting mind reasons the therefor, basis logical we think the (and, more rule believe it is we supported by weight authority) is, that before the claimant be permitted proceed as a creditor to set aside an conveyance he required should be claim, establish his estate, the decedent’s subsisting and himself as a credi- tor, thereupon, if insolvent, the estate is he is entitled to invoke the aid of J., p. 732, statement equity. [See C. sec. 588.] exception
Another which been held to excuse the estab lishment of the proceeding claim at law before is where the validity amount of creditor’s acknowledged claim is or ad by debtor, mitted a judgment which case is unnecessary. [Far mers v. Kendrick, supra; Traders Bank v. Bewes, Inc., C. Buster, v. supra; Corp., White Co. v. Finance (2d) 168; 63 Fed. D. A. Thomp Mills, kins v. Am. 780; Catawba 732; Fed. C. Jur. Ziska, Ziska (N. S.) v. 23 L. R. A. In both Farmers & 18.] Traders Bank Kendrick, Bewes, Buster, and C. Inc., supra, this court held that an acknowledgment or admission indebted ness, validity thereof, prior excused the establishment of it bring at law. Plaintiff seeks to herself within exception herein that by alleging, validity “that her undisputed claim is by defend anyone ants, or else.” Such however does not amount to an affima: allegation validity tive and amount of her claim has been the, acknowledged by anyone or either or admitted debtor in his stead binding authorized make a conclusive admission thereof. Plaintiff herein has not claim established.her estate at (cid:127) .subsisting law and does not come into as a creditor. Nor is any allegation validity there that the of.the claim acknowledged or ground alleged prior or other excuse admitted establishment of of, against the estate-in one prescribed claim by her methods law. allegation the estate is the circumstances insolvent Under give equity jurisdiction. alone sufficient a court Wherefore not ground properly that the demurrer sustained on must hold we facts sufficient to petition does state constitute cause circuit Hyde court affirmed. of action.
Bradley, GG., concur. foregoing opinion C.,
PER is a- CURIAM: —The Ferguson, judges All as the of the court. concur. dopted People’s Corporation, O. H. Commissioner Butler, Moberly, Bank of charge State, thereof, o Finance of f C. A. 125 S. W. (2d)
Allen. 829. One,
Division March 1939. *13 Silvers, Nicholson, John A.- J. B. Leslie M. Crouch L. M. Grouch, appellant. Jr., for notes but that secure . . . to, Maupins time” title “at the knew “the Gregory Nancy party made a nor E. is not defendant fraudulent.” Gregory Gregory party or A. made a defendant G. W. O. is either petition alleges; then capacity. individual bill or an at the time his death personal left no or effects “Welborn ’’ mentioned; the real only estate consist of estate assets of his and the daughter conveyance Ella M. Jordan Welborn to that if . Welborn . . the estate said “permitted to stand