Crockett & Risque v. Maguire, 10 Mo. 34

Crockett & Risque v. Maguire

10 Mo. 34 | Mo. | 1846

Scott J.,

delivered the opinion of the Court.

This was a bill in equity, brought by Crockett & Risque, the appellants, against the appellee Maguire. “The bill charges that Witherill & Foster purchased of Charles Collins, two lots of ground in St. Louis, and that for the purpose of defrauding their creditors, they caused Collins to convey said lots to Wm. P. Foster, the father-in-law of Witherill, in trust for the use of Virginia Witherill, the wife of John Witherill, one of the persons above named of Foster & Witherill.

Collins received no part of the purchase money fom Wm. P. Foster, or Virginia Witherill. This deed was dated February 2d, 1839. On the 7th June, 1839, Foster the trustee, and Virginia Witherill, conveyed the lots to Russell Hubbard, and afterwards by several intermediate conveyances, the lots passed to Maguire the appellee That Maguire, and each of those through whom he derives his title had notice of the fraud committed by Foster & Witherill. That by virtue of a judgment and execution against Witherill in March, 1830, the lots were sold and conveyed to Jas. Neville. This judgment was on a debt of the firm of Foster & Witherill, and was due to Neville, the purchaser of the lots at the Sheriff’s sale. In September, 1830, Neville conveyed to Chas. Collins, and during the month following, Collins conveyed to Thomas. In 1836, Thomas re-conveyed to Collins, and by several intermediate conveyances, the lots passed to the appellants. This bill prayed that the deed, under which Maguire the appellee, claimed, might be set aside, and that the possession of the lots be restored to the complainants.

Maguire, the appellee, in his answer admitted the conveyance from Collins to Foster in trust, and that before the conveyance by said trustee and cestui que trust to Hubbard, that John Witherill confessed^ judgment in favor of said Neville for $1017, upon which judgment an execution was issued against the said Witherill and his interest in the lots sold and conveyed as stated in the bill. Admits the existence of the several conveyances in the bill mentioned, from Neville down to that of the complainants. Admits that he is in possession, and that his title is derived as stated in the bill, and denies all notice of the trust, and of any fraud committed by Witherill in making the purchase from Collins.

To this answer a replication was filed, and the parties went to trial when the complainants bill was dismissed, from which decree he appealed to this Court. Charles Collins, who was a grantor in the claim of title of each party to this controversy, was examined as a witness and gave some testimony conducing to show fraud in the conduct of John Withe-*37rill and some of the grantees claiming under William P. Foster, and Virginia Witherill. Some evidence of a like import was given by other witnesses. The testimony of Chas. Collins was objected to. We need not enter into the question of the admissibility of the testimony of Collins^ as it entirely fails to establish the fact that the appellee was effected with any notice of the fraud of John Witherill, or that his immediate grantor had any notice of his fraudulent conduct. Nor is the fact of notice established by any other witness.

If then notice cannot be imputed from this source, it remains to be inquired into, whether the record of the sheriff’s deed was any notice to purchasers of the lots who acquired them subsequent to its registry.

Collins conveys to Wm. P. Foster in trust for Virginia Witherill, wife of John Witherill, who is in failing circumstances, and who causes the conveyance to be made in that manner in order to defraud his creditors.— Afterwards, but before Foster and Virginia Witherill convey to R. Hubbard under whom the appellee claims, there is a judgment and execution against John Witherill, by virtue of which the lots are sold, and a deed is made and executed. The purchase money having been paid by John. Witherill, it may be conceded that a trust resulted to him and that he is in equity the owner of the land, yet on what principle is the record of the sheriff’s deed conveying his equity evidence against, those claiming under Foster and Virginia Witherill, in whom the legal title is? There is nothing on the registry connecting Jno. Witherill, in any shape, with the title derived from Collins. If it is necessary to examine the sheriff’s deed to Neville, conveying John Witherill’s equity, then it was equally necessary to examine every deed on record; so it amounts to this, that a person taking land under one grantor would be required to search the record from beginning to end in order to ascertain whether some other other person did not assume to convey the same land. The registry of a deed is only evidence of a notice to after-purchasers under the same grantor. Even if a purchaser was bound to look for conveyances from those under whom he claims, as well as to them, that he may see if the title has not been diverted from the channel, which conveys it to him, yet that principle would not help this case, for as has been observed there is nothing in the record of deeds showing any connexion of John Witherill with the title derived from Collins. This case is said to be analagous to that of Jackson vs. Post, 15 Wend. 589; but upon examination it will be found that there is an obvious distinction between them. In that case Merrick conveyed to his son, and before the son’s conveyance was put upon record, there was a judgment and execution against *38Merrick, the grantor, under which the land conveyed to the son was sold, and the sheriff’s deed recorded. Afterwards the son’s deed was recorded, and the purchaser at the sheriff’s sale being affeqted with notice of conveyance to the son, he sold to a purchaser without any other notice than that imported by the registry of the son’s deed subsequent to the sale by the sheriff. Under these circumstances, the Court held the son entitled to the land. Now if in the case before the Court, Foster and N. Witherill had been the source of the title of each party to this controversy, the cases would have been parallel, but instead of the parties here claiming under one and the same grantor, they are really claiming under different grantors. Indeed, it maybe remarked, that the case of Jackson vs. Post, above cited, is contradicted by the case of Trull vs. Bigelow, 16 Mass. 405. Nor do we consider that the case of Anderson vs. Roberts, 18 John. Rep. 514, in which it was held that when there is a deed fraudulent because made to defraud creditors, and subsequent conveyances are made by the fraudulent grantee and the fraudulent grantor, the title will pass by the subsequent-deed, which is first in time, which is analagous to the present one. The plain distinction pointed out between this case and that above cited, of Jackson vs. Post, exists also between the case of Anderson vs. Roberts, and that now under consideration.

Judge Napton concurring, the decree will he affirmed.