14 Mo. App. 353 | Mo. Ct. App. | 1883
delivered the opinion of the court.
The plaintiff purchased the interest of the defendant John Baker, in the property described in the petition, at an execution sale, and brings this suit in equity to set aside a conveyance of the same made by John Baker, to his daughter, Jessie G. L. Baker, prior to the sale. The plaintiff had a judgment in the circuit court in accordance with the prayer of the petition, and the defendants have appealed. We shall consider in their order the questions to which our attention is invited in the appellants’ brief.
1. The first is that the plaintiff is not the real party in interest. It appears that the judgment under which the property was sold was recovered by the Fourth National Bank, of St. Louis, against the defendant John Baker; that this judgment was afterward assigned to the plaintiff; that the property was bid in, at the execution sale, in the name of the plaintiff; that the^ amount of his bid was credited upon the execution ; that the sheriff’s deed was made to him ; and that he still remains the owner of the legal title. But it also appears that the money, with which the judgment of the Fourth National Bank was purchased, was the money of
2. It is next urged that Mr. Davis, if he had sued in his own name, could not maintain this action, because his purchase of the judgment was the purchase of a mere litigious right, which savors of maintenance, and which falls within the rule that the right to complain of a fraud is not a marketable commodity. This argument is not well founded. Our statute (Rev. Stats., sects. 2762-2765), authorizes the assignment of judgments, and gives the assignee any right of action upon the judgment which the assignor would have had. This clearly gives him the right to take any proceedings under the execution issued upon such judgment, or supplemental thereto, which the assignor might have taken. The statute makes a judgment a merchantable property. Any one may buy it who sees fit. It is frequently advantageous to those who have recovered judgments that the law, by distinct expressions, sanctions the right of sale of the same. What the law allows one man to sell, it allows another man to buy, and invests the purchaser with all the legal remedies for the realization and enjoyment of the particular property which it accords to any other owner of the same species of property.
3. The next objection is that the court erred in admitting evidence of any conversation with John Baker, by the witness Simon, after the delivery of the deed to Jessie Gr. L. Baker, and of facts transpiring after the making of the
4. The same may be said of the objection that the court erred in admitting the alias execution, levy, advertisement, anff sheriff’s deed. We may add, that while we overrule these two objections, in conformity with a well settled rule of proceedure in this state (Bevin v. Powell, 11 Mo. App. 216), yet, as this is a suit in equity in which we re-examine the case upon the evidence as chancellors, we shall endeavor to take care that our judgments are not influenced by incompetent evidence.
5. This brings us to the substantial merits of the case. The property in controversy consisted of an undivided one-thirty-sixth part of the estate of Jessg G. Lindell, deceased, which was subject to the life estate of Mrs. Jemima Lin-dell. The evidence fairly shows that this interest at the time of the conveyance which this suit is brought to set aside, was worth $14,000 or $15,000. It was conveyed on the 27th of July, 1878, by the defendant, John Baker, to his daughter, the defendant, Jessie G. L. Baker, now Antisdel, for the expressed consideration of $100. Without entering with much detail into the evidence as to Mr. Baker’s financial condition at the time, we may say that we have carefully considered it, and that it leaves no doubt in our minds that he was greatly embarrassed and insolvent. He was indebted in the aggregate sum of $98,000, exclusive of interest, to various persons in various sums, which were secured by deeds of trust upon his real estate. These deeds of trust covered all the real estate which he owned, except that which is in controversy in this suit. He endeavored to raise money by deeds of trust upon this interest, but failed, in consequence of adverse opinions of eminent lawyers as to whether his interest was vested or contingent. He was, also, at the date of the deed to his daughter, embarrassed by an indebtedness of $12,000 as indorser for
It is justly argued on behalf of these defendants that this deed, if it falls at all, must fall upon one of two theories: 1. That the conveyance was fraudulently concocted between father and daughter to place the property beyond the reach ■of the creditors; or (2) that it was a gift from the former to the latter, made under circumstances in which the law will not allow a debtor to give away his property. Upon the first branch of the question the daughter testifies that they lived in affluent circumstances during the year 1878, us they had always done previously; that they had plenty of money; that she supposed her father had plenty of money, and had no knowledge that he was in embarrassed circumstances. We see nothing in the record tending to contradict this, nor do the circumstances of the case suggest any reason to doubt it. The daughter was, at the time when the deed was executed and delivered to her, a young unmarried lady less than twenty years of age, sojourning temporai’ily with her mother at Oeonomowoc, Wisconsin, a small watering-place. There is nothing improbable in the act of a father in concealing his financial embarrassments from a daughter of such tender years, who could not assist him with her counsel or her means, and to whom such a revelation would be a source of unhappiness. We, therefore, put out of the question the idea that this was a conveyance in which the daughter participated with the father in a design of hindering, delaying, or defrauding his creditors.
6. Finally, the ingenuity of the learned counsel for the defendants has raised an objection which is quite curious.
But if the defendant Antisdel might, by reason of his intermarriage with Miss Baker, be regarded as a purchaser for value of her real estate, the inquiry would follow, upon this record, What is to be deemed the date of the purchase, the date of the marriage contract, or the date of the solemnization of the marriage ? It is essential to this novel defence that counsel should take the position that the date of the purchase should be deemed the date of the marriage contract, which was about six months before the date of the marriage solemnization. But the infirmity of this position is, assuming it to be otherwise well taken, that the marriage contract is not shown to have been in writing; there is not shown to have been any marriage contract in the sense in which that term is used in theEuglish books of equity. But if it were otherwise, if there were in this case a marriage contract, good within the statute of frauds, ante-dating Mr. Antisdel’s knowledge of any equities of this plaintiff, or any knowledge of any circumstances which should have put him upon inquiry, and if that contract could be deemed in law a purchase of the property in controversy, yet we do not see how it could be deemed both a purchase and a payment of the purchase-money; and it is well settled that in order to constitute a person a dona fide purchaser without notice within the meaning of the rule of equity, which the defendants here invoke, it is not sufficient for him to show that he bad no notice at the time of his purchase, but he must also show that he had no notice at the time of the payment of the purchase-money. Wallace v. Wilson, 30 Mo. 355. The most that can be said in favor of this fantastic analogy, if there is anything in it at all, is that the marriage ceremony is to be deemed the payment of the purchase-money.' This being so, Mr. Antisdel,
On the whole, we see nothing substantial in the defences which have been set up against this action, and in the objections which have been made to the rulings of the circuit court. The judgment is accordingly affirmed.