Delo v. Johnson, 110 Mo. App. 642

Delo v. Johnson

110 Mo. App. 642 | Mo. Ct. App. | 1905

BROADDUS, J.

— The plaintiffs, certain judgment creditors of the defendant, Charles F. Johnson, sue in equity to set aside a certain deed made by a sheriff to the wife of Johnson, and to subject the same to their rights as such creditors. The main facts are as follows. The defendant, Charles F. Johnson, at the time of the different transactions to which reference will be made was the owner of real estate of the value of $20,000 or $25,000, that the various plaintiffs at different times during 1897, 1898, 1899 and 1902, recovered separate judgments against him for their respective indebtedness; and that at and prior to the *645times said judgment were rendered said defendant, Charles, had mortgaged his said real estate for a large amount, as follows, to-wit: One mortgage dated in October, 1894, for $9,400 and a second one dated December 22,1894, securing two notes, one for $7,700, and one for $3,722, all in the aggregate of $20,892. In October, 1895, a sale was made of all the lands owned by defendant and so mortgaged, said sale being under an execution issued on a judgment rendered against him-in favor of the Springfield Foundry & Machine Company for $95.90, at which sale the defendant’s wife became the purchaser for the sum of $106, and she received a deed from the sheriff to the lands. At the time of this sale defendant was wholly insolvent. There can be little or no dispute but what the wife paid her own money for the land she so bought at said sheriff’s sale. "Whatever purpose the husband may have had in view, there is no evidence impeaching the good faith of the transaction so far as his wife was concerned. According to witnesses, the land at that time was not of value exceeding the mortgage indebtedness. In April, 1897, defendant Charles paid off and discharged the first of said mortgages and the,same was satisfied of record; and afterwards he paid off and discharged the greater part of the second mortgage, but the record does not show any satisfaction whatever. There was evidence of other transactions connected more or less to the principal one, but for the purpose of the appeal they are not important. The finding was for plaintiffs and defendants appeal.

We differ with the court as to its finding that defendant’s wife purchased the land at the sheriff’s' sale with the intention to delay or defraud defendant’s creditors, but as the decree, if justified in other respects, carefully guards all the rights of the wife, it is immaterial.

Defendant’s principal contention is that as the plaintiffs only rely upon the allegations in their petir *646tioxi that the sale to Mrs. Johnson was fraudulent, they were, therefore, not entitled to recover because they have failed to sustain said allegation by proof. But it seems that there is another allegation in the pleading that would justify the decree, to-wit: The payment by Johnson of the two mortgages on the land amounting to about $20,000 — or about its entire value. It cannot be successfully denied that his creditors were entitled to the money so paid to be applied on their judgments. "When defendant applied his own money to the ex-tinguishment of these incumbrances on his wife’s land he was guilty of hindering and delaying his creditors, which was a fraudulent act. Under such circumstances the creditors may subject such land to the payment of their debts pro tanto. [Hardware Co. v. Horn, 146 Mo. 129; Garrett v. Wagner, 125 Mo. 450; Kirby v. Bruns, 45 Mo. 234.] .

The husband being insolvent, a chancery proceeding is the proper mode to reach his interest in such land and subject it to the demands of creditors. [Kirby v. Bruns, supra.]

The decree in this case renders the wife complete justice as it not only secures to her as a first lien the money she paid on the execution sale on the judgment mentioned, but also secures to her the surplus after satisfaction of the plaintiffs’ judgments. The case seems to be too plain for comment. Affirmed.

All concur.