64 Mo. 289 | Mo. | 1876
delivered the opinion of the'court.
This is a proceeding in equity by plaintiff as a creditor of one John F. Rucker, deceased, to subject certain lands, described in the petition, to sale for the payment of his debt. The petition alleges that said Rucker, in his lifetime, was indebted to plaintiff by two promissory notes, which, after the death of Rucker were allowed against his estate, amounting to the sum of $410.47 ; that said debts were contracted in 1860, and that said Rucker, in 1866, purchased the lands sought to be subjected to sale, paying therefor the sum of $2,500, six hundred dollars of which was furnished by the wife of said Rucker ; that John F. Rucker,, at the time of said purchase, was insolvent, and for the purpose of de
It is insisted that the court erred in overruling the demurrer, because it appeared on the face of the petition that neither the administrator of John F. Rucker, deceased, nor the fraudulent grantees, nor all the creditors of said John F. were made parties.
We do not think that in a proceeding of this character the purpose of which is to attack and avoid the fraud of the intestate, the administrator is either a necessary or proper party.
It is urged as a further objection that all the creditors of John F. Rucker, deceased, were necessary parties, and that the petition was defective in not making them parties. In George vs. Williamson, supra, it was held, Judge Napton speaking for the court, that, “ when a fraudulent conveyance is made, the creditors or any one of them may file a bill in equity to have the same set aside ; and in such eases it seems to he 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.” The above rule seems to be founded on the principle that the creditor or creditors whose diligence, after legal remedies are exhausted, pursues the property of a fraudulent debtor into a court of equity, are entitled to a preference as the reward of their vigilance. If the creditor whose execution is returned unsatisfied, and whose remedies at law have been fruitless and unavailing, prosecutes the race of legal diligence by the commencement of a suit to defeat a fraud and enforce the sale of property held by a fraudulent conveyance he ought to reap the benefits resulting from his diligence. (Weed vs. Pierce, 9 Cow., 721; Corning vs. White, 2 Paige, 567.)
We do not think that the fraudulent grantees who had parted with their interest in the land sought to be subjected to sale, and who had conveyed the same to defendant, Robinson, as trustee for his wife and children, were necessary parties. They claimed no interest in it and could not be affected by any decree which might be rendered in the case.
It is said that the petition discloses a legal remedy for the colleciion of plaintiff’s debt, and for that reason the demurrer to it ought to have been sustained.
In the case of George vs. Williamson, supra, it was held that a probate court in such cases has no jurisdiction to order the sale of the land, fraudulently conveyed by intestate for the payment of debts, even though such application for sale was made by creditors through the administrator. Plaintiff’s only remedy is the one to which he has resorted in this case. While, as before stated, fraudulent grantees who have parted with their interest are not necessary parties, yet it is necessary to make all such grantees who have not parted with their interest, and who claim under the fraudulent conveyances sought to be impeached, parties to the proceeding.
This has not been done in this case so far as Caroline Miller, one of che defendants, is concerned. It appears from the petition that Caroline Miller, who obtained an interest under the conveyance alleged to have been made by Jonathan Rucker to JohnE. Rucker, was the wife of one Miller, and she is made a party without the husband being joined with her. She is sued without her husband being joined with her, and in this respect the petition is defective, and the demurrer to it on that ground was well taken.
Wagn. Stat. p. 1001, provides that where a married woman is a party her husband must be joined with her in all actions excbpt those in which the husband is plaintiff only, or the wife plaintiff and the husband defendant.
It was held in Latshaw, et al. vs. McNees, et al. (50 Mo. 384,) that a married woman cannot now be sued alone, except when the husband sues her.
Judgment reversed and cause remanded,