*1 MISSOURI. COURT OP Bank v. and circum- all the facts a careful review .After hesi- have no record we stances shown tancy tbe to make saying the evidence sufficient in that jury. we are Under such circumstances a case interfering verdict rendered. with the warranted judgment All is affirmed. coAcur. Appellant v. , MILAN HENRY RICHMOND BANK,
et al. Two, December 1919. Division Who Shares in Pro- FRAUDULENT CONVEYANCE: Creditor 1. judgment proceeds A shares in the ceeds. creditor who rights. being in land cannot avoid the sale as of his fraud surety 2. -: -: Attachment. on Defendant two notes by plaintiff, $3280, held $7000 and judgment owner of 280 acres of land. Plaintiff obtained on $3,280 note, the land for value and sold a fair judgment clerk, the circuit turned amount of the purchase plaintiff, it over to balance of the days, Thereafter, within a few to defendant. note, attached, and the land was on $7000 Held, ground plain- creditors. the sale was fraud of tiff, by part accepting a of the sale satisfaction land, existing judgment, was a first lien sale, or no to assert fraudulently judgment made, it was nor it have its on the can ' (cid:127) $7000 note a lien on the land. made Estoppel. judgment -: 3. Ratification: has Where creditor certain note a sale the debtor’s collected satisfy land, he cannot cause the land to another be resold note, on another on the the first sale was pass pur- fraudulent When he saw the title and invalid. took a chaser in satisfaction ex- of his isting judgment, ratify the he elected to sale. And whether principle applicable estoppel ratification, is denominated result is the same.
Appeal from Sullivan Circuit Lamb, Court.—Hon. Fred
Judge. Yol. 280] TERM, Milan Bank v. Richmond.
Afeirmeb. *2 appellant. B. Fields for B. Painter and
J. E.. or conveyance (1) Every estate to hinder real clearly subsequent prior or is defraud either creditors (2) utterly It been sec. 2881. has R. S. void. contradistinguished (as doctrine actual held sound grantor constructive) participated in fraud both from conveyance subsequent grantee, as will vitiate existing 260'.. Mo. Cole, Avell Cole v. 231 creditors. susceptible positive proof. (3) rarely ever Fraud is chiefly tracks covered traceable vermiculations are Its presumed; not be and studious concealments. conscience anything and Young, mind but satisfies Massey Mo. v. 73 existence is sufficient. use Burgert 80; State Borchert, v. 59 Mo. 260; Bordenheimer, App. 6; v. Mo. Grosohke Estel, 6 v. 598; Allgaier, App. 88 Mo. v. 353; Frederick Mo. 15 Estes, Ismay, App. Martin v. 322; 55-Mo. v. Gordon Zweigart, 46. S. W. HoAvard v. 197 402; 132 Mo. insufficiency (4) consideration, considera ofWant property, a debtor of land or other for a sale tion Pickinpaugh, always fraud. v. element Childers an Mo. 135 Vollrath, of Boonville v. 376; 219 Mo. Hogan, App. Mo. App. 211 Mo. 63; v. 135 Jones App. 212; Kennedy, Mo'. 157 Admr. v. Duncan;, 45; (cid:127) lionberger App.. v. 109; Mason, 178 Mo. Johnson v. Gentry- Mo. 399. Field, 447; 143 88 Mo. v. Baker, (5) pay debts an insolvent debtor A sale or notes into cash but to turn his seizable easily creditors, may the reach be withdraAvn knowledge purchaser proposition, will if of such had Fry, 24. v. 216 Mo. be aside. First National Bank set place KnoAvledge (6) which would of circumstances Jury inquiry may ordinary prudent authorize man on prop knowledge purchaser that the had to find erty Mason, v. Johnson creditors. fraud Avassold App. Bruns Bank of Commerce v. 109; 178 Mo. (cid:127) 32 COURT MISSOURI. OF Bank v. Richmond. (7) Persons who 602. Co., wick Tobacco 155 Mo. knowledge having inquiring their of fraud means of shut eyes incriminating for the circumstances acts, through advantage fraudulent obtaining) knowledge plea they thereof, no under the chargeable Yeney Furth, Mo. with are fraud. grantee grantor App. (8) 678. Where both grantor defraud creditors intend to regardless aside set should Galgin, adequacy Aull of the consideration. Burgert 80-; McDonal v. Borchert, 59 Mo. Hoover, respondent.
D\
M. Wilson
(1)
equity
He
clean
into
must come with
comes
*3
242, Mo.
Stewart,
hands. Modern Horse Shoe Club- v.
Siple,
Morton,
421;
v.
129
v.
208;
may
Robinson
Mo.
Jarrett
by
And
44
appellate
275.
this doctrine
invoked
Bivert,
court on
Creamer
its own motion.
v.
circuit
WHITE, Circuit Court of In September County, plaintiff 19-13,, 29', ease this TERM, Vol. y.
Milan defendant Richmond against judgment Henry recovered in the the amount a note for seven $12,999168, sum of 1905, September 14, thousand executed dollars, petition interest. 1914, plaintiff On March filed 26, County case in the this Circuit Court Sullivan of said enforcing purpose of land in Sullivan eighty two acres hundred Richmond County, formerly owned defendant de- conveyed to defendant Morris, him fendant Morris to defendant it conveyed Meeks, tried claimed The cause was fraud September in favor rendered 11, 1915', n defendants, to this appealed court. The salient facts leading filing up are present suit follows:
On September 14, H. de- Richmond, W. son fendant was indebted to Richmond, Henry one for seven notes, two herein, thousand three two and one thousand hundred and with the dollars, Henry eighty as his also were surety; persons sureties incid- note. The ents- connected are placing with this indebtedness unimportant here. Soon afterwards our three-thousand-two-hundred- note and-eighty-dollar judgment obtained against the defendant having fled Henry son at the country appears fugitive from justice. September after were days signed, six the notes *4 an attachment suit bank brought was the on the seven note. hundred acres thousand-dollar Four the land, including here, land in was controversy attached; also the defendants, land of sureties the note. on attachment January On this suit the sixteenth dismissed On was- January another attachment suit on day brought was note attached. same and same was of January, 1906, eight On eleventh day days the first attachment suit, after dismissal of SUPREME COURT MISSOURI. OP Milan Bank Richmond. days brought, five before was defendant second Henry eighty Richmond sold the two hundred and controversy acres of land in to defendant twenty per price amounting total acre, five thousand dollars, six-hundred was conveyance Something cash made to was Morris. year conveyed a like later Morris sold the land to defendant dollars. Meeks seven thousand change attachment suit second sent on was County, judg- venue to Macon where was tried and ment rendered in favor of the defendant appealed The case was to this reversed court, was reported remanded and in 235 again County That case tried the Macon January Circuit Court, 13', at the close of evidence defendant’s took a nonsuit and same, day the attachment was dissolved. On the third suit same note was in the Sullivan County Court, Circuit same four hundred acres change of land attached. were taken This .Grundy County. peculiar proceed- of venue to There a ing had. One sureties on the note, Amon adjudged repre- Richmond, had been insane and was guardian. sented defendant suit On guardian granted separate motion of the proceeded against Henry trial. The trial the September Richmond, was rendered 29', 1913, as stated. support
In order to that a fraudulent property, attended the sale of Richmond’s plain- of which defendants Mforris and notice, Meeks had attempting evidence tiff offered show that when eight made, Richmond Morris "was b3^ days the first attachment' after suit was dismissed brought, before the five second was Morris knew da3^s existence of note and that about the it; same twenty the remainder land, sold hundred and acres, to that he Jesse son Richmond; sold *5 TERM', 280] Vol v. Richmond. Milan Bank personal property, including sheep other cattle, to persons that Morris knew at same making disposition property. It was other his that the defendant further shown nearly gave wife thousand land, his two if, daughter gave various dollars, and two his hundred money. sums appellant that Morris was also shown seventy years to buyer. too old, old
a land He was accepted suggested to him and the trade was farm; that looking very at notice, him on brief without proven to facts were land. Other of that character purchase improbability caring to 'the indicate borrowed thel entirle own account. He on his farm fifty-six pay for land from the to hundred dollars president National Bank. Ike Guinn, First One saloonkeeper, Johnson, bank, note bank, director were sureties there to be effort thé seemed to with the connect officers bank deal. ' the defendant testified hand, On the eight at the thousand was worth about dollars First he had stock time; that two dollars in'the thousand eight cash; dollars in National about hundred loaning him was so that the amount extraordinary. not so by plaintiff also show
Evidence offered 'was eighty acres, was worth land, two hundred and Eight thirty forty an acre. witnesses from dollars sums; varying between all swore to values those nearly all some connection with whom, however, bank. put witnesses, defendant, sworn
Eleven on behalf of twenty-five the value from at seventeen twenty per majority placing of them it at acre, dollars twenty-five per twenty at acre, or dollars an acre.
Appellant showed not due at time first suit was note was MISSOURI. SUPREME COURT OF *6 day of nor the time dismissed the third it, at it was attempted January, Morris knew* to show 1906’; bought, it that the suit at he and knew second day fell instituted the after the note due. was Morris testified that he suit know that didn’t because note was dismissed it been over the due; wasn’t he had few land a good ago; while that when the times trade first was suggested give twenty he he him said would dollars provided get money. acre an for he could It it, agreed was then that Johnson and Guinn see got he went on his note at the bank. buy He right. he up stated that if it also would all showed He knew there three was eighty against thousand, two hundred and dollars in land favor Milan have would paid, papers to be and he seen that a suit brought by against Richmond had dis- been missed “with leave to the note.” He draw consulted attorney inquired closing before the deal whether dispose being Richmond could hampered of his without any way. attorney He was told right. who examined the record -that all was He explained did land had understand only been attached. He knew suit had been attorney and had that a heard suit dismissed. was His something might said the effect that the suit again, instituted Meeks was shown that when bought took bond protect from Morris to This, his title. however, was after the land was attached in suit the second and that pending. then suit
When the trade was closed between Morris and Richmond, Morris drew his check three thousand, seventy-seven four payable' hundred dollars and cents, to the circuit clerk, in
interest which the Milan Bank held gave balance, check two thousand, ninety-nine twenty-three hundred and" cents, (cid:127) TERM', Vol. 2801 v. Richmond. to Richmond. The clerk the costs out of retained forty about him,, dollars, amount balance hank. plaintiff’s out, case is so far as Morris made upon testimony Morris. His concerned, disposition February taken in the case 6, 1906, probably v. Richmond, Milan Bank when that brought; deposition was first offered that testimony given evidence. case His on a trial of Henry September of Milan Bank v. deposi- also read evidence His April
tion in the case 1915,- taken *7 deposition in that was offered evidence the statements, of these testified In each where Morris extending he from to 1915, at wide intervals, substantially substantially story the made told same regard explanations the same transaction. the to only in The three differ from each statements unimportant points recollection some of details important. sequence It of as to of not events matters testimony that was served he with seems garnishment was the attachment after second acquired says brought.. he looked* he the land he After what further most the matter and learned of into The evidence Richmond’s condition. he knew about to not know Richmond that was tends show did bought the land from nor him, insolvent at the time he giving away his wife that Richmond was to and son. plaintiff placed in a such
The itself has the sale of that it the cannot of now property by the to sale Richmond Morris. "When plaintiff purchase received was made the hank money three dollars—more than four hundred thousand purchase price. not the total It three-fifths anywhere contended that did officers money exactly purchase where the from. know came weight supported finding that the evidence The plaintiff’s full The the land was sold for value. its MISSOURI. COURT OF v. Richmond. The on the a first lien land. was Mor- not be made invest so to could judgment. payment that ris with title without the purchase through paid The of! was clerk just plaintiff court, as it would have been hank if had caused sale to made under execution.- That be plaintiff’s judgment say,
is to payment. disposition in effect entire forced exactly the if same as had the land execution caused to levied surplus have sold, because would been case paid defendant, it him, days receiving Three after that sale on the attachment, bank its suit Subsequent suits, in- the sale was fraudulent. proceeded cluding upon present the same one, theory. attempts Thus to avoid which plain- proceeds. It be noted that the obtained will petition judgment, here tiff to have bank seeks its twelve dollars and made over, thousand a lien enough' The amount this land. more than absord appears the entire value also land. purchaser, garnish- Morris, served with a proceeding-, probably surplus ment proceeds reach This is not *8 the but is from what record, clear in inferable does appear. principle applicable to is refer- tins sometimes estoppel
red and to as sometimes called ratification. reject right having- accept the “Where one to a transaction retains and benefits thereunder, takes bound the becomes transaction cannot avoid ancL# obligation by taking its or effect inconsistent Cyc. therewith.” [16 1198-1199.] 9 C. J. said court in the case of Austin this Loring, Mo. l. c. 22: person adopt
“No will be allowed to reject a transaction which him, is favorable to and injury the rest the those from to whom he derived n the benefit. those are When entitled to avoid ' TERM, 280] Vol.
Milan Bank v. ¡from adopt equity estop ratify it, sale them will setting afterwards it aside.” execution,
That where was said by and knowing him, a defect in the on stood service of his permitted in satisfaction land to be sold his proceeds. surplus received the debt demanded estopped “By he ratified the sale,” action from, any laying the land. himself claim to suit Williams, In the case of Chase 74 Mo. setting brought under for the sale aside redeeming the a deed of trust acting no had au sheriff, as trustee, thority the issue sell. The circuit court found to plaintiff appealed, but favor of the defendant, procured surplus an order in the meantime proceeds them. It was held of the sale to be procuring appeal finding that, the motion and paid, sale order have the of the therefore heard on had ratified the would sale and question validity. appeal 437.] [74 l. c. its Boogher l. c. Frazier, 32,5, securing where a three notes trust was foreclosed deed of sale at the instance the owner of two of trustee, note sued the notes. The owner third purchaser que at the trustee’s and the trust, the cestui judg of the sale and recovered sale against Hav his debt. the amount-of them for ment judgment ing collect all of failed to the sale was claimed void which he validity deny estopped passed title. He was no against purchaser.- That sale trustee’s principle case. very similar case is lien) (a judgment security Here its greater part value; land land’s plaintiff ob full sold for its value proceeds. out full tained therefore, not, It could Having purchaser land. collected *9 land it not cause from a could sale
40 COURT MISSOURI. OF
Milan Bank v. Richmond. satisfy its resale to another .on the first sale invalid. partition Where sale tenants in common they partitioners, receive the as them' due cannot afterwards of the sale. [Hector Mann, 245-48.] 225 See, also, v. Mo. l. c. pertinent point to the Proctor consideration, under holding 104, where a Nance, landowner surplus arising takes the sale estopped ratifies taxes sale deny validity (l. 115). its To the c. same effect principle Cunningham, 1100, are Lawson v. 204 S. W. l. Ry. c. Sebree v. Cassville & 1106; Co., Western Bridge 212 16; W. l. S. c. Railroad 215 Co., 296s; Mo. l. c. Nanson v. Mo. l. Jacob, 93 c. 346; State ex rel. v. Mo. l. Citizens 274 73; c. Koenig, Francis, Henderson v. 192 Mo. l. c. Platt v. Hayes Manning, Mo. l. c. 310; l. c. right At bring the time sale subject equity attachment its suit and seek discharge other note. didn’t pass do then but stood and saw the title took first satisfaction of its judgment; ratify is-, it elected to the sale. unnecessary
With view the case it is to con- this- presented propositions sider the in the briefs. The judgment is affirmed.
Railey Mosley, GG., concur. opinion by foregoing PER CURIAM:—The White, adopted opinion C., the court. -of All judges concur.