Dunnica v. Coy

24 Mo. 167 | Mo. | 1857

LEONARD, Judge,

delivered the opinion of the court.

This judgment will be affirmed ; but we proceed on grounds altogether different from those that have been suggested to us in the briefs. We decided at our last fall term at St. Louis, in the case of Rankin against Harper, (23 Mo. 579,) that where a father purchased land with his own money, in the name of a child, in order to defraud his creditors, there was a<resulting trust to the father in favor of the creditors, which was subject to sale under our execution laws. In that case, the land was sold and conveyed by sheriff’s deed to the plaintiff, who filed his petition .stating these facts, and upon a trial and verdict he obtained a judgment vesting the legal title in him, and for the possession and damages. And at the same term, in the case of Eddy against Baldwin, we applied the same doctrine to a case where the alleged fraudulent purchase of the land sold under execution was made by the husband in the name of a stranger as trustee, .upon expressed trusts, in favor of the wife.

According to these decisions, it would seem that, if the facts be in the present case as stated in the petition, and the plaintiff had completed his purchase bj taking the sheriff’s deed fot the land bought, he would have become the beneficial owner of the property, and might have filed his petition to have the alleged fraud tried, and the trustee decreed to convey the legal title to him, and for the possession of the land, and an account of the rents that had accrued since the purchase. Bjut the fatal defect in the petition is, it is not shown that the sheriff had executed a deed to the plaintiff, which of course was necessary to complete the purchase and transfer to the purchaser the rights of the judgment debtor in the land. This may have been an accidental omission on the part of the pleader, or it may be that the deed has never been made; but however the truth may be, we must assume upon this demurrer that there was no conveyance, and therefore the plaintiff was not entitled to the relief he asked.

Although a judgment creditor may, before proceeding to a sale of land alleged to have been fraudulently conveyed, go into equity for the purpose of having the question of fraud there tried, and the land sold under a decree for that purpose and the proceeds applied to the payment of his debt, yet this petition does not seem to have been framed with any view to that kind of relief, and we are not perhaps at liberty to treat it as such, after the party’s averment of the execution sale, even if the allegations of the petition were otherwise sufficient to entitle the plaintiff to the other rélief indicated.

The judgment upon the demurrer must therefore be affirmed, and the party will then of course complete his purchase by taking a deed, and afterwards institute such fresh proceedings as he may deem appropriate to his case. The judgment is affirmed.