50 Mo. 161 | Mo. | 1872
delivered the opinion of' the court.
This case was formerly in this court (35 Mo. 120), and it was then reversed and remanded because the case, as then made by the proofs, did not conform to that stated in the petition, and because the court was of the opinion that no sufficient reason appeared for the interference of a court of equity. After the case was remanded, the plaintiffs amended their petition, and upon a retrial they obtained a decree vesting in them the title to the property.
The case shows that plaintiffs claim to derive title from one J. W. Wasson and wife. The land in controversy was originally owned by the town of Carondelet, and by conveyances of the town and its grantees it was finally vested in Bowlin and wife. Bowlin and wife afterwards deeded it to J. D. Taylor, and he undertook to convey it to Elizabeth Wasson, wife of J. W. Wasson, but there was a misdescription in the deed. Subsequently Wasson and wife conveyed the same property to the plaintiff’s ancestor in payment of a debt; and Mrs. Taylor, who refused to join in the deed made by her husband to Mrs: Wasson, relinquished her interest to him. The defendants, before the bringing of this suit, took possession of the premises and claimed to hold them as the heirs of Taylor. The mistake in the description of the property contained in Taylor’s deed was, I think, clearly and satisfactorily proved. There was no error in the court’s admitting the conveyances made and executed by the town of Carondelet. The town was expressly authorized to sell and convey the lots, and the deed' sufficiently conformed to the provisions of the law. (2 Terr. Laws, 393; Reilly v. Chouquette, 18 Mo. 220; Tigh v. Chouquette, 21 Mo. 233.)
If a person who is insolvent or in failing circumstances purchases property with his own money and has it conveyed to another, that conveyance is void as to subsequent purchasers of the property from him. (Howe et al. v. Waysman et al., 12 Mo. 169.) The conveyance is fraudulent, and, as to purchasers and creditors, it is as if it had not been. The property continues to be his, and if he conveys it his vendee will acquire a good title. The case of Howe v. Waysman expressly decides that point. Therefore, when Wasson purchased the property from' Bowlin with his own money, and had the deed taken in the name of Taylor to shield it from his creditors, no title vested in Taylor, but the property belonged to Wasson, and his conveyance to a purchaser for a valuable consideration would transmit the fee. The voluntary conveyance of Taylor to Mrs. Wasson was of no effect, and could not in anywise impair the right of the plaintiff’s ancestor, who bought the title from the legal owner for a valid consideration. Taylor had no title, and his heirs, the defendants to this suit, who claim under, him, have none.
An objection is taken in this court that the decree is not in accordance with the prayer in the petition. But that is una
The petition asked for a correction of the deed -for damages and for judgment for the possession of the land. The court refused-the judgment for possession, and the plaintiffs appealed. The simple demand for damages was entirely disregarded by the court, and there was no evidence offered or given on that subject. It appears to have been carelessly inserted in the petition and was not relied on. We may therefore here consider it as mere surplusage, and treat the petition as a bill in equity to obtain title and nothing more.
In all cases that are strictly equitable the court may issue whatever process is necessary to enforce its decrees. Our statute provides that in all cases where judgment is given for the conveyance of real property, the court may by its judgment pass the title to the property, without any act to be done on the part of the defendant, and may issue a writ of possession, if necessary, to the sheriff to put the party entitled in possession, or may proceed by attachment or sequestration. (Wagn. Stat. 1056, §§ 27, 28.) This is simply declaratory of the old chancery practice and enunciates no new rules. There may be cases concerning real estate purely equitable in their character, where the court would possess the power to decree that the possession should be delivered up and surrendered. But it is improper to mingle a cause which is purely equitable with one that it is strictly legal in the same count in a petition, and proceed to try them together before a chancellor. But it does not thence follow that in all cases a party must first get his decree for title, and then bring a separate and independent action in ejectment to obtain possession. An intimation of this kind was thrown out in Peyton v. Rose, 41 Mo. 257, which has been followed in subsequent cases, but we think the doctrine has been too broadly stated. A plaintiff may unite in the same petition several causes of action, whether they be legal or equitable or both, if they arise out of the same transaction and are connected with the same subject of action. But where causes of action are thus united they must be separately stated, with the
In the present case there was no legal issue tendered. Although there was a prayer for damages, no attention was paid to it, and it was treated as surplusage. The bill was strictly equitable throughout, and the plaintiffs had no other remedy. When that
This is the first time the question has been presented to this court in this shape; and so much of the judgment, therefore, as refused to put the plaintiffs in possession should be reversed, and the court below will be directed to award the writ.