106 Mo. 381 | Mo. | 1891
On the fourth day of September, 1886, Augustus A. Mellier, of St. Louis, commenced this action in the circuit court of Butler county, Missouri, against the defendants, George T. Bartlett, Mary M., his wife, and Luke P. Quinn. The writ was returnable to-the November term, 1886 ; the cause was heard by the-judge as a chancellor, and a decree rendered for plaintiff, February 23,1888, and from that decree, the defendants appeal.
The petition is as follows.
“ Plaintiff states that on the sixth day of April, 1875,. he obtained judgment against the defendant, George T. Bartlett, for the sum of $395.37 on an- accepted draft, dated September 6, 1874, due in thirty days thereafter ;. that lie caused an execution to be issued on said judgment returnable to the June term, 1875, and delivered to the sheriff of Butler county, Missouri; that said execution was in due time returned to the court by said sheriff, which return showed that said defendant had no-goods or chattels in' his county out of which said execution could be satisfied.
“ Plaintiff says that afterwards, to-wit, on the thirtieth day of October, 1882, defendant, George T„ Bartlett, acquired property in the county of Butler, hereinafter described, subject to execution on said judgment, and plaintiff caused another execution to be issued on said judgment, and placed in the hands of the sheriff of said county of Butler; that said execution was by said sheriff levied on the following described real estate in the town of Poplar Bluff, county of Butler, state of Missouri, as the property of said defendant, George T. Bartlett, to-wit, the west half of lot 25 per the recorded plat of the town of Poplar Bluff, containing one quarter of an acre of ground, and bounded north by Oak street, easterly by the east half of said lot, south by lot number 26, and westerly by Fourth street; that said property was advertised by the said
“ Plaintiff says that in due time and by proper proceedings he appealed from said judgment and order of this court to the supreme court of the state, and that said order and judgment of the circuit court was on the --day of---- 1886, being at the April term, 1886, of the supreme court, reversed and held for naught; plaintiff says that said George T. Bartlett is still the ■owner of said real estate ; that the same was acquired by the said George T. Bartlett from Thomas Gardner on the thirtieth day of October, 1882; that the said George T. Bartlett then, and is now, deeply indebted to a number of parties ; that he was then, and now is, insolvent and has no other property out of which an execution can be satisfied; that when said George T. Bartlett acquired said property he caused the same to be conveyed to defendant, Mary M. Bartlett, his wife, for the purpose of hindering, delaying and defrauding his creditors, and especially the plaintiff ; that the said Mary M. Bartlett paid no part of the consideration money for said property, but all of the same was paid by the defendant, George T. Bartlett; that on the ■eighth day of November,'1881, R. O. Edwards, administrator de bonis non of the estate of Shelton H. Shront, •deceased, in this circuit court, obtained judgment against George T. Bartlett and others ; that execution was issued thereon, and levied on the property herein-before described as the property of George T. Bartlett; that said property was sold by the sheriff of this county under said execution on November 6, 1885, and defendant, George T. Bartlett, acting by and through defendant, L. F. Quinn, was the highest bidder at said sale;
‘ ‘ That the said George T. Bartlett paid such purchase money, to-wit, said $417 ; that said Luke F. Quinn and George T. Bartlett caused said title to be conveyed by the sheriff to said Quinn in furtherance of the aforesaid design of said George T. Bartlett to hinder, delay and defraud the creditors of said Bartlett, and especially plaintiff.
“Plaintiff, therefore, prays that he may have judgment against said defendant, George T. Bartlett, for the sum of $395.37, his debt, with interest thereon from the-date of said judgment, to-wit, April 6, 1875, and for costs by plaintiff expended and paid, to-wit, the sum of $16.15 and costs of court.
“That the defendant, Luke F. Quinn, be declared a trustee, holding said real estate for said defendant, George T. Bartlett; that the interest of the said defendant, Mary M. Bartlett, be divested from her, and that-the same be vested in defendant, George T. Bartlett,, and that the said property, or as much thereof as maybe necessary, be held to satisfy 'the claim of plaintiff, and for such other and further relief as to this honorable court may seem proper.”
To this petition a demurrer was opposed, for the-reason that it did not state facts sufficient to constitute • a cause of action in equity. The demurrer was overruled, and defendants answered over, denying all the allegations of the petition. The circuit court tried the cause-without a jury, holding that it was a proper case for a chancellor. On the trial the evidence for the plaintiff' disclosed that the defendant, George T. Bartlett, was-financially embarrassed. As stated in the petition, it appeared that on the sixth of April, 1875, AugustusMellier, of St. Louis, obtained a judgment against.
No further steps were then taken till 1884, when another execution was sued out, and the homestead, in which Bartlett and his wife resided in Poplar Bluff, was levied on. On "the motion or petition of Bartlett, the circuit court of Butler county quashed that levy. Mellier appealed to this court, and in Mellier v. Bartlett, 89 Mo. 135, the action of the circuit court was reversed. In the meantime, Mellier had taken no step to revive his judgment, and the ten years within which he could revive it by scire facias expired.
Augustus Mellier then commenced this action in equity. Bartlett was shown by the evidence to have been a resident of Butler county during all this time. It further appeared from the evidence that, from 1878 to 1882, there was cross-litigation between Bartlett and Thomas Gardner, and two judgments were rendered. In one case Gardner recovered the property now in dispute, and in the other Bartlett obtained a decree permitting him to redeem-c said property upon paying Gardner some $5,000. On the twenty-eighth of October, 1882, these suits were amicably arranged, and it was agreed that Gardner would convey this property to Mrs. Mary M. Bartlett, the wife of George T. Bartlett, for $2,500. As a part of that settlement it was agreed Gardner would take Bartlett’s two notes secured by the indorsement of Ed. and Luke Quinn, payable in thirty and sixty days, for $1,500. In pursuance of this agreement, Ed. and Luke P. Quinn paid these two notes, and Gardner and wife on the thirtieth day of October, 1882, made a general warranty deed to this lot to Mrs. Bartlett. On the seventeenth day of April, 1885, John G. Wear, administrator de bonis non of Shelton Shrout, sued out an execution against defendant, George T. Bartlett, et al., on a judgment obtained November 8, 1881, in the Butler circuit court, for $460.04,
On June 11, 1885, the sheriff made public sale of this property at the courthouse door, and at that sale Luke Quinn, Mrs. Bartlett’s son-in-law, bought it, paying the full amount of the judgment and costs. We have read the testimony, and we fail to find in it any evidence, worthy the name, that shows that Quinn in making this purchase used one dollar of George T. Bartlett’ s money, or that there was any agreement between Bartlett and Quinn that Quinn should buy it with Bartlett’s money and take the title to Quinn. On the contrary it does appear that Bartlett made an ineffectual effort to borrow the amount of the judgment from Mr. Chapman; his attorney, and, failing, Quinn bought it, he says, in order that his mother-in-law, with whom he had lived a number of years, might have a home. We are not unmindful of the rule that has prevailed in this court for many years, of deferring to the judgment of the trial courts. We still think it a most salutary rule, but we do not understand that rule to deprive this •court of its proper appellate jurisdiction in chancery •cases. Carried too far, it would amount to a denial of an appeal in equity causes. We think that in an appeal like this the record presents a case for our determination, and if from a careful consideration, in our judgment, error has been committed, it is our duty to correct it. Hence in this case, unless we are to hold that a son-in-law may not lawfully purchase the land of his father-in-law, at a public sheriff’s sale, and take the title, even if his father-in-law was guilty of fraud in holding the title in his wife’s name, we must reverse this case. For let us concede that Mrs. Bartlett held this house and lot as trustee for the creditors of Dr. Bartlett, and that Judge, Wear as administrator of Shrout had a perfect right to subject it to his execution,' when that sale was made, the purchaser took all the interest and estate of George T. Bartlett discharged
We hold that if a stranger had purchased this lot under Judge Wear’s execution, he would have taken it discharged from any mere general indebtedness of Dr. Bartlett; that it would have conveyed to him all of Bartlett’s interest, and the evidence in this case does not place Luke Quinn at any greater disadvantage than any other purchaser at a fair public' sale. The only ground for relief was that Bartlett furnished the money, and the proof does not sustain it. On the merits of this case, we think the court should have dismissed the bill of plaintiff.
In the trial court, the defendants insisted that there was no equity in plaintiff’s petition; that the bill, on its face, disclosed that plaintiff had no judgment that was, or could be, a lien on the property sought to be charged. Learned counsel for respondent admits in his brief, that if the judgment of this court in Mullen v. Hewitt, 103 Mo. 639, is not overruled, that his judgment cannot stand, and urges upon us to overrule that decision. The opinion in that case was prepared, after a careful review of all the authorities in
“In Wiggins v. Armstrong, Chancellor Kent held that a creditor at large, or before judgment, was not
The case of Luthy v. Woods, 1 Mo. App. 167, to which counsel invites our attention is clearly distinguishable from the case at bar. The fund against which plaintiff proceeded there was in the hands of the St. Louis school board, and was not subject to garnishment either under attachment or execution. No such difficulty is in plaintiff’s way here. No excuse whatever is shown why plaintiff did not keep the lien of his judgment alive from time to time. Knowing the condition of the docket of this court, at the time of his appeal from Judge Owen’s judgment, quashing his execution, he could easily anticipate that his-judgment would expire
Take this case ; -suppose Dr. Bartlett held the title to this lot in his own name at the time plaintiff’s action was commenced. Plaintiff had no lien on it by contract; the only way for him then to acquire a lien on it was to obtain a judgment. To get that judgment he must bring an action, which defendants had the right to defend. The court in which it was brought would have no right to assume plaintiff would recover a judgment. Suppose then Bartlett had concluded to sell this property to an innocent purchaser, would a, court of equity have interfered to restrain him, and, if it would not enjoin him, would it tolerate the tying it up without any security until the litigation ended, by a mere lis pendens ? We think most clearly not. Suppose in the end, Bartlett should defeat the plaintiff by proving he had no title to A. A. Mellier’s judgment, or that he had paid it, what redress would Bartlett have, if he had lost a sale, or been damaged otherwise ? We venture the opinion that no well-considered case in this state has ever gone this far.
Until Mellier obtained a judgment that would justify him in inquiring into the domestic affairs of Bartlett, it
Nothing we have said here in any way militates against those cases which are cognizable in equity alone. But in this case plaintiff could have brought an action to obtain a judgment, sued out his attachment, sold the property at a sheriff’s sale, become the purchaser if he desired. His attachment would have held the property in statu quo, till he had time to inquire whether Mrs. Bartlett, or Quinn was the owner. We think the rule too well established as a rule of practice and right to attempt any innovation. We know of but one case where such a proceeding is allowed in our practice, in advance of a judgment, and that is by virtue of the attachment law. R. S. 1889, sec. 571. In that case, the plaintiff has acquired by the levy of his writ of attachment a statutory lien, that places him upon a vantage ground over a mere general creditor. We do not think it necessary to cite authorities on a proposition so generally understood.
We accordingly reverse the judgment of the circuit court of Butler county, and direct the bill dismissed.