George v. Williamson, 26 Mo. 190

George v. Williamson

26 Mo. 190 | Mo. | 1858

Napton, Judge,

delivered the opinion of the court.

The administrator of the estate of Thomas Williamson, at the instance of the creditors, applied to the county court of Callaway county for an order to sell the real estate of the deceased for the payment of his debts, the personal property having been exhausted. Among other tracts of land desired to be soid, the administrator represented that a certain tract, describing it, had been conveyed by the deceased in his lifetime to his daughter, and that this conveyance was fraudulent and void as against said Williamson’s creditors. The county court made the order. The land in question was sold in the usual way, and the administrator became the purchaser. He then filed his bill in the circuit court against the daughter of Williamson, setting out' the facts above stated, and praying the court to set aside the conveyance to the said daughter and -decree the title to the land in the plaintiff. There was a demurrer to the bill, which was sustained.

*193Ill our opinion the demurrer was properly sustained. The conveyance of Williamson, however fraudulent against his creditors, was valid against him and his heirs. At his death the land constituted no part of his estate, nor could the administrator, who represented his interests, undertake to set it aside; nor had the county court any jurisdiction over the matter. The sale therefore under the order of the county court conveyed no title.

Where a fraudulent conveyance is made, the creditors or any one of them may file a bill in equity to have thé same set aside; and in such cases it seems to be the better opinion that the creditor who first files his bill obtains a priority, and is entitled to be first paid from the proceeds of the sale, if a sale is decreed. (4 Blackf. 145.)

Such has been substantially declared to be the law by several previous adjudications of this court, and whatever opinion I might entertain individually in relation to the policy or propriety of the course pursued in this case, its illegality is too well settled to be now sanctioned without a change of legislation. (Brown v. Finley, 18 Mo. 375.)

The other judges concurring, the judgment is affirmed.