Lohmann v. Stocke

94 Mo. 672 | Mo. | 1888

Norton, C. J.

On the seventh day of April, 1883, plaintiff, as a purchaser at execution sale under judgments rendered against defendant, Stocke, of certain land in Morgan county, instituted this suit. At the date of said sale, the said land was encumbered by a deed of trust executed by defendant, Stocke, to defendant, Traube, as trustee to secure the payment to defendant, Reithman, of an alleged note for thirty-one hundred dollars. Plaintiff, in his petition, alleges that said note and deed of trust were without consideration and were executed for the purpose of defrauding and cheating the creditors of said Stocke, and prays the court to declare them to be void as to creditors, and to cancel the same. The answer of defendants denied all fraud. On the trial of this issue it was found for plaintiff and a decree was entered as prayed for. From this decree defendants have prosecuted their writ of error to this court, assigning for error the action of the court in receiving evidence, and that the decree is against the weight of the evidence.

On the trial defendants objected to the introduction of any evidence, stating as the ground of objection that it did not set forth a cause of action, in that it did not appear that the notice required by Revised Statutes, section 2381, where real estate is situated in a different county from that in which defendant in the execution owning such real estate resides, was given. The objection was properly overruled if for no other reason than that one of the 'executions on which the sale was made, issued on a judgment which was rendered in the county where the land sold was situate. In Harper v. Hopper, 42 Mo. 124, it is held that the provision of the statute which requires notice to be given to a defendant, where' an execution is issued to a county other than that in which he resides, has been uniformly held to apply only to cases where the execution is sent to be levied on land in a county different from that in which the judgment was rendered and execution issued. Harris v. Chouteau, 37 Mo. 165; Buchanan v. Atchison, 39 Mo. 503.

It appears from the record that, in January, . 1878,, defendant, Stocke, being in failing circumstances and largely in debt, executed a deed of trust conveying the land in question to defendant, Traube, who was his son-in-law, as trustee, to secure the payment of a note to one Heisel for thirty-five hundred dollars ; that, on, the fifth of March, 1881, Traube, as trustee, sold the land, and Susanna Reithman, one of these defendants, and the sister of Stocke, became the purchaser, and received a deed from the trustee. Lohman, the plaintiff in this suit, as a creditor of said Stocke, instituted a proceeding in equity returnable to the October term, 1881, of the Morgan county circuit court assailing this deed, making said Heisel, Stocke, Traube, and Mrs. Reithman parties, and charging them with a fraudulent conspiracy in the execution of said deed of trust concerning the land, its sale, and the deed made to Mrs. Reithman, to defeat the creditors of said Stocke in the collection of their debts. All of the defendants in this suit were defendants in that, and all appeared and answered. Depositions were taken in said suit by each side, some of which were refiled in the present suit and read in evidence, some by plaintiff and some by defendant.

In the suit above referred to, the court found the. fraud as alleged and cancelled the deed made by Traube to Mrs. Reithman. It further appears that said Stocke made a second deed of trust conveying the said land to said Traube, as trustee, to secure the payment of a note to Mrs. Reithman for the sum of thirty-one hundred dollars. This deed is dated October 19, 1879, but not acknowledged till the fifth ■ of March, 1880, nor recorded till the ninth of March, 1880, six days before the rendition of the judgment against Stocke; on which an execution issued, and under which plaintiff became a purchaser of said land at a sale made by the sheriff of Morgan county in April, 1883, and received a sheriff’s deed, and instituted this suit to set aside said second deed of trust from Stocke to Traube, trustee, to secure the payment of said Stocke’s note to Mrs. Reithman, making said Stocke, Traube, and Reithman defendants.

On the trial, the depositions of Traube, Heisel, Stocke, and Reithman, taken in the first suit and refiled in this, were read in evidence .over the objection of defendants, and the action of the court in this respect is complained of as error. Depositions taken in one suit between the same parties, and refiled in a subsequent suit between the same parties, involving the same subject of enquiry and dispute, may be properly read in evidence. Priest v. Way, 87 Mo. 16. Besides this the record shows that the defendants also offered and read in evidence certain depositions taken in the same cause, and having adopted the same course pursued by plaintiff, ought not now to be heard to complain.

The evidence shows that Stocke, who lived in St. Louis, was heavily embarrassed and insolvent; that Traube, the trustee, was his son-in-law; that Mrs. Reithman, who is the sister of Stocke, lived in a village in Illinois with a population of about two hundred persons, and kept a boarding-house ; that her husband had died some time previous leaving an estate insufficient to pay his debts ; that the value of Mrs. Reithman’s personal property, goods, etc., from 1877 to 1881, was about two hundred dollars. It also shows that, on the fifth of March, 1880, when Stocke acknowledged the deed of trust, he requested the notary to date the acknowledgment back to the date of the deed in 1879. Besides this the evidence, of Mrs. Reithman, as well as that of Traube and Stocke, taken in the first suit, as well as that given by them in the second suit, in regard to these transactions, was evasive, unsatisfactory, and contradictory, and indicative of the fraudulent combination alleged, and which the court having the witnesses before it found to exist.

After a careful examination of the evidence we find nothing in it to justify an interference with the judgment.

All concur, except Ray, J., absent.