Good v. Merkowitz Bros.

35 Mo. App. 658 | Mo. Ct. App. | 1889

Thompson, J.,

delivered the opinion of the court.

This is a proceeding by injunction to restrain the sale of certain real property under an execution. A temporary injunction was granted, but, on final hearing, the court dissolved the injunction and dismissed the suit. The plaintiffs appeal to this court.

The case is this: The defendants recovered a judgment against the plaintiff, Dan Good. While the suit in •which this judgment was rendered was pending, Dan Good conveyed the property in controversy, through a third person, to his wife, Nancy Good, without any other consideration than love and affection, and for the purpose of securing his family against want. The defendants in the present action, plaintiffs in that action, having prosecuted their suit to judgment, caused the sheriff to levy upon the right, title and interest of Dan Good in the land in question. To enjoin a sale under this levy Nancy Good brings this suit in equity, her husband, Dan Good, being joined for conformity.

This case should have been disposed of on demurrer to the petition. It cannot be supported on any just conception of equity jurisdiction. In this state an injunction will not be granted to restrain a sale of land under an execution, on the ground that the sale will cast a cloud on the title of the true owner, where the plaintiff would have a full and adequate remedy at law in defending an action of ejectment. Drake v. Jones, 27 Mo. 428; Kuhn v. McNeil, 47 Mo. 389; Witthaus v. Bank, 18 Mo. App. 181, 184; Parks v. Bank, 31 Mo. App. 12, 16. Much less will an injunction be granted at the suit of A. to restrain a sale of the right, title and interest of B., in land which may be owned in fee simple by A. by an antecedent legal title ; for such a sale does nqjt, upon any conception, cast a cloud upon the title of A. Witthaus v. Bank, supra. Here, the wife is seeking an injunction to restrain a sale of her husband’s interest in land which he has conveyed to her prior to the judgment. If the conveyance to her is good, the husband retains no interest in the lands which is vendible in execution (R. S., sec. 3295), and she is not harmed by the sale of his supposed interest, under an execution against him. On the other hand, if the conveyance to her is bad, as being in fraud of her husband’s creditors, they would, under a rule well settled in this state, have the right to sell whatever interest in the land he might have, and the purchaser at the sale would have the right to maintain a suit in equity to set aside the conveyance. Lionberger. v. Baker, 88 Mo. 447; affirming S. C., 14 Mo. App. 353; Haskell v. Whyte, 12 Mo. App. 585. This remedy oí the creditor cannot be headed off by an injunction proceeding on the part of the grantee of the debtor.

The judgment will be affirmed.

All the judges concur.