66 Mo. 299 | Mo. | 1877
— In allowing Hall and Jordan to be made parties defendant, the court committed no error. Two hundred of the six hundred acres of land, against which plaintiff is seeking to enforce a vendor’s lien, had, by him as administrator of the vendor’s estate, been sold and conveyed to Hall and Jordan, who were in possession thereof under that conveyance. Whether the title which they acquired by purchase from the administrator be good or bad, they had a sufficient estate in the land to be materially interested in the result of the suit, such an interest as warranted the court in permitting them to become parties defendant.
Each of them in his answer denies that Mrs. Callahan owed or ever promised to pay to plaintiff’s intestate any sum of money whatever for the lands conveyed to her by him, and alleges that it was not a real but a pretended sale, the sole purpose of both grantor and grantee having been to defraud the creditors of the grantor.. It has been held in this State in the cases of Hamilton v. Scull’s Admr., 25 Mo. 166; Fenton v. Ham, 35 Mo. 410, and Harwood v. Knapper, 50 Mo. 456, that in a suit for the purchase money the vendee of goods, or the grantee of lands, may plead
Speaking for myself, and not for my associates, I think the weight of authority and reason against that doctrine, but in the case at bar the evidence of the. fraudulent character of the conveyance was admissible, on the part of Jordan and Hall, to- show that no debt was incurred by the grantee'. They did not claim under the deed from Nutter to Mrs. Callahan, but adversely to it, and nothing in that deed estopped them from pleading the truth, even though it contradicted the deed.
If Mrs. Callahan incurred no debt by the transaction between her and Nutter, there could be no vendor’s lien; and that she did not agree to pay any sum of money to Nutter for the land, and that it was understood between her and Nutter that by accepting that conveyance, she came, under no obligation to him to pay 'the purchase ■ money, the evidence leaves no room for doubt.
• The deed states the consideration to have been $13,-000, but in the deed the grantor acknowledges its receipt. No note or other written evidence of her indebtedness, is taken by the grantor from the grantee, no promise to pay is proven, and to divers persons, at different times and places he stated that Mrs. Callahan had paid him in full for the land. In the presence of a witness, at their residence, they performed the idle ceremony, she of paying, and he of receiving a sum of money which they then stated was the purchase money for the land. While a jury might have found from the evidence that Mrs. Callahan never paid the amount of purchase, money specified in the deed, we think that no juxy could 'have found, had that issue been submitted, that she ever agreed to pay that or any other sum. The evidence establishes clearly that it was a conveyance made for the sole purpose of defrauding the creditors of Nutter.
Whether Nutter’s wife, who had sued him for a divorce and had procured an allowance of alimony pendente
As to the other four hundred acres, a different question is presented. Mrs. Callahan admits in her answer that she did agree to pay Nutter $13,000 for the lands, but avers that she paid it to Nutter in his life time. She does not allege fraud in the transaction, but that the conveyance was made in good faith, and that she paid a valuable and an adequate consideration. She could not avail herself of the evidence on the issue mad'e between the plaintiff* and Hall and Jordan, as to her promise to pay purchase money for the land. Her answer admitting that she had agreed to pay it excludes her from the benefit of the evidence on that issue. Capital Bank v. Armstrong, 62 Mo. 65. Admitting that under the decisions of this State, supra, she could have relied upon the fraud in the conveyance as a defense to the action, she did not, nor could Hall and Jordau, or her husband, Callahan, make that defense for her. Her husband, in his separate answer, relies upon the fraud in the conveyance, but he is in privity with his wife, claims under her, and his interest in the land as tenant by the courtesy, or his life estate as husband, is subject to any liens with which the lands were affected before their intermarriage.
the judg’ment is reversed, and the cause remanded to be proceeded with in conformity to this opinion.
Reversed.
