95 Mo. 396 | Mo. | 1888
The defendant, Joseph Long, purchased three tracts of land, one from Greenwood, in August, 1881, one from Mackey, on August 12,1882, and the other from Brown, on the thirty-first of August,'1882. Deeds •of the lands were made to Sarah P. Long, wife of Joseph Long, conveying to her in all two hundred and eighty acres, in Adair county. In December, 1883, the plaintiff recovered two judgments against Joseph Long, one in his own right for §956.73, based on a note made in 1877, the other as administrator of Abraham Rinehart, for §1,325.79, based upon a note made in the same year. Both notes were given by Long for borrowed money - Plaintiff purchased the lands described in the several ■deeds, at a sale made under executions, issued upon his judgments. He then commenced this suit to set aside the deeds to Mrs. Long, and vest the title in him, on the ground that they were made in fraud of the creditors ■of Joseph Long.
1. The petition, in form, sets out three causes of action, with a prayer for relief to each. The only difference in these counts or causes of action is, that one sets out the Greenwood deed, another the Mackey deed, and the third, the Brown deed. A petition in equity will not be multifarious where the plaintiff bases his claim for relief on one general right. Hence, where a debtor conveys land in fraud of creditors, and the title has passed by different deeds to different persons, they may all be joined in one suit; for they all have a common interest in respect of the fraud. Bliss on Code Plead. [2 Ed.] sec. 110a; Tucker v. Tucker, 29 Mo. 350; Donovan v. Dunning, 69 Mo. 436; Bobb v. Bobb, 76 Mo. 419. All that is stated in the present petition should have been set out in one cause of action. But it seems the court treated the whole petition as one cause of action, tried the case, and rendered a decree •on that theory. We, therefore, conclude there is no
2. Another objection to the petition is, that it does not state facts sufficient to constitute a cause of action in this, that it does not show that defendants had no other property out of which the debts could be made. The petition states that, at the date- of the respective deeds to Mrs. Long, the defendant, Joseph Long, was wholly insolvent, that he owed about fourteen thousand dollars, and that his property was wholly inadequate to satisfy his indebtedness. This allegation is sufficient and especially so in view of the proof, which shows that Mr. Long was then, and at all times since has been, insolvent.
3. So far as the merits of this case are concerned, but little need be said. The proof shows beyond all doubt, that the land in suit was purchased by James Long, and that he paid thereon some forty-four hundred dollars from money which he received from his father’s estate. He had the land conveyed to his wife, who paid no part .of the purchase money. He was then insolvent and is still insolvent. Some two thousand dollars of the purchase money was unpaid at the date of the sheriff’s sale, and subject to which the plaintiff purchased the property. It is not necessary to cite authorities to show that these deeds to Mrs. Long cannot stand as against then existing creditors. The evidence does show that James Long owned a valuable farm in Knox county ; but he incumbered that with two deeds of trust, one in 1875 for four thousand dollars, and the other in 1877 for two thousand dollars, and the land has been sold thereunder,
4. The defendants complain because the plaintiff purchased the land in question at the sheriff’s sale for the small consideration of thirty-five dollars. This was evidently due to the effort on the part of themselves to place it beyond the reach of creditors. Besides this, and the fact that the property was incumbered for the purchase price to the extent of two thousand or twenty-three hundred dollars, the defendant, Joseph Long, offered proof in this case that he caused his attorney to make public proclamation at the sale, warning persons not to bid, that the land belonged to Mrs. Long and not to him, that he had no interest in it, and that whoever purchased would buy a law suit. Inadequacy of consideration is no defence to this action, under such circumstances.
5. Finally it is contended by the appellants that the plaintiff is a subsequent purchaser, and that he has not made out a case within the rule of Bonney v. Taylor, 90 Mo. 64. That case is not at all in point here; for it is the well-established law, that a purchaser at an execution sale occupies the same position and has all the advantages of the judgment creditor when he seeks to set aside or defeat a fraudulent conveyance made by the judgment debtor. Ryland v. Callison, 54 Mo. 513; Lionberger v. Baker, 88 Mo. 447. Here the plaintiff was, in fact, a creditor in his own right as to one of the debts.
The judgment is affirmed.
