Rankin v. Harper

23 Mo. 579 | Mo. | 1856

LEONARD, Judge,

delivered the opinion of the court.

The main question in this case is, whether land, purchased in the name of a child for the purpose of defrauding creditors, is subject to sale under our execution laws ; or whether, in such a case, the only remedy of creditors is_to purchase the property in equity, and have it declared subject to a trust for the payment of debts. This is a new question here to some extent, although somewhat involved in the case of Howe & Wallace v. Waysman, heretofore determined in this court, (12 Mo. 169,) and we proceed to consider it both on principle and authority, but in as brief a manner as possible.

Under the English law, legal estates only were subject to legal executions, and of course the equitable owner of land was beyond the reach of executions at law. This was remedied by the 29 Oar. 2, ch. 3, § 10, which subjects to execution all real estate of the defendant which any other person holds in trust for him ; and as it was a principle of equity law, that, if one purchased land in the name of a stranger, the use resulted to the party who paid the purchase money, this resulting trust, of course, became liable to execution under the provisions of the statute. If, however, the conveyance be in the name of a wife or child, it is presumed to be a provision for the former and an advancement to the latter, and in such case, therefore, there, is no resulting trust. But it is to be observed that this presumption may be repelled by contrary proof, and then the trust results, as in the ordinary case of a purchase in the name of a stranger. And Sugden says, (2 Vend. & Pur. 171,) that if the purchase be after marriage and voluntary, it may perhaps be deemed fraudulent as against creditors in like manner as if the property actually vested in the husband. It has, however, (he continues) been strenuously argued that a purchase is not within the operation of the 13th Elizabeth, for, as the purchaser may give the money to the object of his bounty to purchase the estate for himself, he may by the same reason direct a convey- - anee to be made to him ; and this seems to be the better reason when the case is clear of actual fraud.

In New York, where the statute of 29th Car. 2 was in force by re-enactment, the very case here suggested of actual fraud occurred in Guthrie v. Gardiner, (19 Wend. 41,) where, in an action of ejectment, the plaintiff claimed land under a deed made to her by a stranger at the request of her husband, who paid the purchase money and directed the deed to be made to his wife for the benefit of his family, and to protect the property from his own debts, for which it was afterwards sold under execution and bought by the defendant. The court declared that tbo presumption that the deed was a provision for the wife, having been rebutted by the proof of actual fraud, a resulting trust arose to the husband in favor of his creditors, and that the fee passed under the execution sale to the purchaser. The original statute was subsequently repealed in New York, and it was then provided that no use should result to the party who paid the money, but that the title should vest in the grantee, and that the conveyance should be presumed fraudulent as against existing creditors ; and that, if the presumption was not disproved, a trust should result to them to the extent which that should be necessary to satisfy their demands. (Per Brown, C. J., in Wait v. Day, 4 Denio, 442.) Under this statute, the chancellor of New York thought this land could not be sold under an execution at law, but that the creditors must go into equity to have the effect of the statute trust. The words of the statute seem to require that construction, but the Supreme Court decided otherwise, and held that the remedy of the creditors was, as before, by an execution sale, which they deemed a more direct and speedy remedy than a resort to a court of equity. (Wait v. Day, 4 Denio, 439.) Our execution law is quite as broad in its terms as the English act, and has received, practically, a more liberal construction. In its language, it extends to every interest in the land of which the party himself, or any one for his use, is seized in law or equity. Although the case of Howe & Wallace v. Waysman was that of a purchaser and not of a creditor, yet the reasoning of the court applied quite as forcibly to the latter as to the former. Our law subjects all that a man has as property to the payment of his debts, and we know of no reason why the trust, that results to him who pays the purchase money, and which can not be allowed to stand as an advancement to a child, or a provision for a wife, on account of the actual fraud, should not be allowed to result to the debtor for the benefit of his creditors, so as to afford them the speedy and easy remedy of an execution sale. It ill-becomes the parties to the fraud, after they have been detected and foiled in their attempt, to complain of the sacrifice of property incident to sucb sales. These sacrifices are perhaps fully compensated for by their practical teachings, that, after all, “ honesty is the best policy.”

The manifest defect of our law, in refusing to allow a defendant in any suit to be a witness for his co-defendant, we can not remedy by judicial construction. It existed in the original act in New York, but was amended there at the very first session of the legislature that afterwards occurred. Our legislature, however, have not seen proper to correct what we suppose is a mere oversight, and we are not at liberty to do so.

There is nothing in the answer of the juror that ought to invalidate the verdict; nor do we think there is any thing in the exclusion of the evidence in reference to the pecuniary condition of the debtor, so long after the impeached transaction. It was not competent evidence for the defendant at first, nor did it become so after the plaintiff had put into his case the execution and return under which he derived his title to the property. This was competent proof for the plaintiff in making out his title, and he was obliged perhaps to put it in for that purpose, and the defendant can not be allowed to seize hold of this in order to get in illegal evidence, under the pretence of rebutting a fact that appeared incidentally in the sheriff’s return.

The formal defects in the judgment will be amended here, and, with the consent of the plaintiff, the damages to be adjudged will be confined to those that have occurred since the judgment below 1 We shall accordingly reverse the judgment below and enter judgment here, vesting in the plaintiff the title acquired by the defendant, Orrin Harper, under the impeached conveyance, 'and for the possession of the land, and the costs of both courts. The judgment below is reversed, and the judgment here pursuant to this opinion.