178 Mo. 716 | Mo. | 1903
This is a suit in -equity by the Citizens’ Bank of Memphis, Missouri, a judgment creditor of Charles Burrus, to set aside as fraudulent a conveyance from said Charles Burrus and wife, Mary, to William Burrus, of 153 acres of land in Scotland county, and to subject certain notes held by Mary Burrus, amounting in the aggregate to $1,055, to the payment of judgments held by plaintiff, aggregating the sum of $996, against said Charles Burrus and several securities who signed notes with him at plaintiff bank, which said securities have also been named as defendants in this proceeding.
The petition sets out the fact of the rendition of judgments in 1899 in favor of plaintiff, the insolvency of Charles Burrus, and of his ownership of a certain tract of land in Scotland county known as Burrus home place, comprising about 700 acres, together with a large amount of personal property thereon; the sale and conveyance thereof by said Charles Burrus, and the after-purchase of the land in controversy from the Scotland County National Bank with the proceeds accruing from the sale of the former tract; the conveyance of the latter tract in the name of his wife, Mary Burrus, to defraud his creditors and of her after-conveyance of said tract to William Burrus, a brother of Charles Burrus. The petition then alleges that the purchase price for the latter tract was all paid by said William Burrus to Mary Burrus, except the sum of $1,000, for which sum -the said William executed his two. promissory notes for $500 each, payable to the order of Mary Burrus, in three and six months, respectively, after the date thereof, which notes it is further averréd are still held by the said Mary Burrus and remain unpaid. The petition then sets up the fact that the judgments declared on were obtained on account of money borrowed from plaintiff by the defendant Charles Burrus in 1896, evidenced by
“Plaintiff further alleges and charges the facts to be, that all the judgments hereinbefore mentioned, were and became liens upon all the real estate owned, either in law or in equity, by the said Charles R. Burrus.” Further alleges that said Burrus is wholly and absolutely insolvent and is not the owner of any property that can be seized and sold on execution, except that herein mentioned and described.
“Plaintiff further alleges and charges that it is wholly remediless by or through the ordinary process or proceedings at law against C. R. Burrus. That all debts, for which said judgments were rendered, were the individual debts of said Charles R. Burrus, and the plaintiff and the parties owning said judgments, were, before the institution of the suits thereon, notified by each and all of the securities to proceed to the collection of said debts against said C. R. Burrus, he being the principal and party primarily liable for the payment of the same. That in equity and good conscience, he ought to pay for the same, and the property owned by him and fraudulently conveyed, as hereinafter alleged, ought to be subjected to the payment of the aforesaid judgments.
“Plaintiff further alleges and charges the facts to be, that on or about November 15, 1897, the defendant C. R. Burrus resided with his wife, the said defendant Mary E. Burrus, on a large farm, situated in Mt. Pleasant township in Scotland county, Missouri, the title to same being in said C. R. Burrus, he, in fact, being the owner of the same which consisted of about 700 acres.
“Plaintiff, therefore, says that, by reason of the notices given by said securities and by reason of insol
“Plaintiff further alleges and charges the -fact to be, that said sureties, having signed said notes as sureties for defendant, C. R. Burrus, and he, at the time, being the owner of about 700 acres of land in Mt. Pleasant township, Scotland county, Missouri, and a large amount of personal property, said sureties signed for him solely as his securities, the said notes upon which the said judgments were rendered as heretofore set out in this petition, and said plaintiff having been notified by said securities to collect the debts off of the principal debtor, C. R. Burrus, and in pursuance to said notice, plaintiff brought said suit and obtained said judgments.
“And plaintiff further charges the facts to be, that with the proceeds of said 700 acres of land, and of said personal property, said C. R. Burrus purchased the land heretofore described in this petition, and used $3,500 of such proceeds in paying for said land, and had the title of same taken in the name of defendant, Mary E. Burrus, and plaintiff further charges the fact to be, that as to the securities aforesaid of Chas. R. Burrus, said conveyance was voluntary and without consideration and at the time said C. R. Burrus was wholly insolvent, and further alleges and charges the fact to be, that afterwards, the defendants, Mary E. and Chas. R. Burrus, conveyed said land to defendant ’Wm. D. Burrus and executed a deed to him therefor, and all the purchase money therefgr was paid by Wm. D. Burrus to said Mary E. Burrus, except $1,000, for which said Wm. D. Burrus executed and delivered to Mary E. Burrus and in- her name, two notes for $500, due respectively
The answer filed by the defendants, Charles, Mary and William Burrus was a general denial. When the cause was reached for trial the court formulated and submitted to the jury called to determine the fact, the following issues:
“1. Did defendant Chas. R. Burrus purchase land of Scotland County National Bank with his own funds and cause the same to be conveyed to his wife' for the purpose of hindering, delaying and defrauding his creditors ?
“2. Were the lands purchased of the Scotland County National Bank by Mary E. Burrus and paid for with her own money?
“3. Was the land conveyed to Wm. Burrus by Mrs. Mary E. Burrus and Chas. R. Burrus her husband for the purpose of hindering, delaying and defrauding the creditors of Chas. R. Burrus ?
“4. Was said lands conveyed to Wm. Burrus by Mrs. Mary E. Burrus and Chas R. Burrus without consideration?
“5. ' Was the sixty acres of the original farm that had been conveyed to Mary E. Burrus purchased and paid for with her own means ?
“7. If you answer the above questions yes, you will state the amount you find he was indebted to her.
“8. Did Mrs. Mary E. Burrus purchase and pay for forty acres of land of C. W. Murray with her own money!
“9. Did Mary E. and Charles R. Burrus jointly purchase and pay for eighty acres of land of George Owens which was deeded to Charles R. Burrus!
“10. Did Charles and Mary Burrus jointly purchase and pay for forty acres of the Phillip's land at sheriff’s sale, the title to same being taken in the name of Charles R. Burrus!
“11. Did Mary E. Burrus knowingly suffer and permit her husband,. Charles R. Burrus, to claim to own personal property of hers, and real estate she had a right to, that was in her name, and exercise acts of ownership; over and to hold the same out to the world as his!
“If you answer the above interrogatory in the affirmative you will p>lease further answer the following:
“12. Did either of the securities mentioned in the petition on account of such apparent and claim of ownership by said Charles R. Burrus, of his wife’s property, sign his note as his security and become liable for the debt or debts sought to be recovered by this action!
“13. If you answer this interrogatory in the affirmative you will also state in your answer which surety was so induced to sign said note or notes.”
The jury found in the affirmative on the second, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth and thirteenth interrogatories, and in the negative as to the first, third, and fourth. To the seventh interrogatory their answer was, ‘ ‘ two thousand dollars, ’ ’ and to inter
The findings' of the jury were adopted by the trial court, and the following decree was entered in the case:
“It is, therefore, considered and adjudged by the court, that said sum of $1,065 is subject, and ought to be applied, to the payment of the debts to the plaintiff, and it is ordered and adjudged that plaintiff have and recover of and from the defendant, Charles R. Burrus, Mary E. Burrus and William D. Burrus, said sum of $1,065, and that they recover their costs laid out and expended off of Chas. R. and Mary E. Burrus.
“And it is further ordered that the defendants Chas. R. and Mary E. Burrus surrender said notes to the clerk to be cancelled by him and delivered to the said William D. Burrus, and that execution issue therefor.”
From this decree Charles, Mary and William Burrus have appealed. It may be noted here, that no allegation is made in the petition filed, that in the procurement of the various loans upon which plaintiff obtained its judgment, either Charles or Mary Burrus made any representations to the plaintiff touching the ownership of the wife’s property, or that the wife permitted her husband to hold himself out to plaintiff as owner thereof, or that the loan in question was made by plaintiff in reliance on such apparent ownership, and no proof along that line or to that effect was offered or made at the trial. The testimony on part of plaintiff tended to show that' the notes upon which plaintiff obtained his judgment against Charles Burrus and his securities, were made in the year 1896 as the result of money borrowed by the said Charles Burrus from the plaintiff bank with the defendants Breedlove, Brem, Ladd, Shawley, Houston and Smith as securities, but that no one of the notes contained the names of all the above-named securities who have been joined as defendants in this suit, and that as these notes would fall due, they would he renewed from time to time by consent of the
This land known as the home place, except the sixty acres owned by Mrs. Burrus, had been- occupied by Charles Burrus and his family as a homestead for thirty years or more, and at the time of making the notes in question was mortgaged for something like ten thousand dollars. In November, 1897, Charles Burrus sold the entire 700-acre farm upon which he was then living, subject to the incumbrances thereon, for four thousand dollars in cash and some property in the State of Illinois ; and from the cash received, paid to his wife $3,000 to apply on a two-thousand dollar indebtedness which the court found the said Charles Burrus was owing to his wife at the time on account of money borrowed, and as a part of what the wife was entitled to have re
Whatever the purpose of Charles Burrus may have been in selling the home farm, and paying to his wife three thousand dollars of the money received therefrom, there is nothing in the record to indicate that she, in accepting the same from her husband, had any other purpose in view than having satisfied, in part, what was justly due and owing to her from him. That her purchase of the 153 acres in question, and its sale after-wards, was in good faith, and not for the purpose of covering up property of her husband, was made most certain by the testimony. In our judgment, the evidence utterly fails to show any fraudulent intent on the part of Mrs. Burrus, either by act or deed, in the entire transaction.
While the record shows that Charles Burrus was much embarrassed during the entire history of the transaction related herein, and at the time of the institution of this proceeding was hopelessly insolvent, it is also
In the first place, this is not an action prosecuted by plaintiff for and in behalf of the securities who signed with Charles Burrus the notes in question, although plaintiff does say in the closing lines of its petition, as above indicated, that such is its purpose. It is distinctly alleged that plaintiff yet holds and owns said judgments and that no part of same has ever been paid by said Charles Burrus or any one else, and the judgment decree as entered is in favor of the plaintiff personally, and not as the assignee of, or as the trustee for, the securities mentioned. In fact, the securities have been joined as co-defendants with the Burruses, in this proceeding, for what purpose, however, no reason is assigned , or suggested.
Without stopping to comment upon the form of plaintiff’s action, it will suffice to say at this time that
While no principle in our jurisprudence is better established than that where one by’ his or her act, deed or conduct, induces or causes another to believe in a certain state of facts, and that other acting upon it, parts with his money or property, the former will be estopped to deny that such fact really existed, in a controversy between said parties involving the question of the existence or non-existence of such fact or facts asserted or assumed; but equally as well founded is the rule that no one can invoke estoppel, to stay the assertion of a truth by another, who has not himself or herself been misled, or induced to do some act or thing to his or her injury, on account of some false act, conduct or deed of that other, which otherwise he would not have done or when he who invokes the rule had no knowledge of the false action of the other at the time he acted.
Applying this rule to the unquestioned facts of this case, as found by both jury and court, it must be manifest that Mrs. Burrus is not estopped from asserting her title to the notes in question, which she had received from the sale of the 153 acres of land in controversy,
As the plaintiff had not been misled or deceived by the act, conduct or representation of Charles Burrus, regarding the ownership of his wife’s property, in which it is claimed she acquiesced, it can not, in this proceeding, invoke estoppel against the wife’s assertion of title to the notes in question, derived through the sale of that property. Not having been misled or deceived by the act, conduct or representation of either Mr. or Mrs. Burrus, the plaintiff can not, in its own behalf, invoke estoppel against Mrs. Burrus. Neither can the plaintiff, being a. stranger to the transaction between Charles Burrus and his securities, whereby the latter were induced to sign the notes held by plaintiff on account of his untrue statement as to the ownership of his wife’s property with her acquiescence or approval, set up such acts and conduct in behalf of said securities as a ground of
Under our practice act (sec. 540, R. S. 1899) all actions are required to be prosecuted in the name of the real party in interest. This, if nothing more, would preclude this case from being considered as one for the benefit of the securities. Moreover, the securities themselves would have no standing in court to subject the notes in question (belonging to and held by Mrs. Burrus) to the payment of the debt evidenced by the judgment against themselves and Charles Burrus, until they, as securities, had first paid the debt, which, it appears, from both the petition and the facts, they have not done. Neither does the fact that the securities notified plaintiff (as provided by sec. 4500, R. S. 1899) to proceed against Charles Burrus as the principal debtor on the notes held by the bank, and that suit was instituted in pursuance of such notice, and further, that this proceeding was instituted at the request of said securities, and that before doing so, the plaintiff was indemnified against all costs and liabilities, on account thereof, by the securities, as the petition alleged was done, entitle plaintiff, who is in no way shown to have been misled or deceived by any acts or representations of any one to its wrong or injury, to avail itself of the doctrine of estoppel in this action against Mrs. Burrus. "When the court determined that Mrs. Burrus received from her husband $3,000 (that afterwards went into the land in controversy, the resale of which resulted in her getting the two notes that have been subjected to plaintiff’s judgment by its decree) from the sale of the old homestead of 700 acres, on account of an honest indebtedness due to her from her husband in part, and the balance on account of money he had gotten from the sale of her
Judgment of the trial court will be reversed, and plaintiff’s hill ordered dismissed.