205 Mo. 344 | Mo. | 1907
This cause is here by appeal from a judgment of the circuit court of Madison county, Missouri, in favor of the plaintiffs. This is an action of ejectment, brought originally in the circuit court of Stoddard county, to recover lots 10, 11 and 12 in block 16 qf the town of Bemie. The venue of said cause was changed to the circuit court of Madison county. The petition is in the usual form and the answer of the defendant was simply a general denial. Both parties to this proceeding claim title to the land in controversy under G. L. Edwards as the common source of title. Plaintiffs claim by virtue of a sheriff’s deed under an execution against G. L. Edwards, and defendant through a direct conveyance made by G. L. Edwards to his wife,'M. A. Edwards, on December 26, 1892. ■
The testimony on the part of the plaintiffs shows that G. L. Edwards acquired title to the premises in
On February 2, 1893, a transcript of the justice's judgment was filed in the circuit clerk’s office of Stoddard county. After the execution issued by the justice had been returned, the attorney for plaintiffs filed in the office of the circuit clerk a certified copy of the execution with the constable’s return, and caused an execution to be issued by the circuit clerk. Under this execution, which was dated August 19, 1893, the sheriff levied upon and sold the premises in controversy and plaintiffs became the purchasers, receiving the deed under which they claim. Shortly after acquiring title
On the part of the defendant the deed from G. L. Edwards to M. A. Edwards, conveying all of lots Nos. 10, 11 and 12 in the village of Bernie, county of Stoddard and State of Missouri, was offered in evidence. To this deed plaintiffs interposed objections: “First, because it purported to convey lots 10, 11 and 12 in the village of Bernie, while the premises sued for are described as lots 10, 11 and 12 in block 16 of the town of Bemie; second, because being a direct conveyance from husband to wife, it conveyed no legal title and constituted no defense to the action of ejectment, the answer being simply a general denial.”
The court, upon these objections, simply announced that it would for the present admit the deed. In addition to the foregoing deed defendant offered the following conveyances in evidence:.
A quitclaim deed from M. A. Edwards to J. L. Fort and J. B. Buck, dated January 4, 1897.
A quitclaim deed from J. B. Buck to George Houck, dated August 5, 1899.
A warranty deed from J. L. Fort and George Houck to W. M. McGaugh dated August 15, 1899.
A deed of trus't from William McGaugh to 8. P.
A trustee’s deed from S. P. Jeffers to George Houck, dated August 2, 1900.
A warranty deed from George Houck to W. E. Edmonds and M. O. Doom, dated October 25,1900'.
A quitclaim deed from M. C. Doom to W. E. Edmonds, dated June 25, 1902.
There was other testimony offered by the defend: ant tending to show that the suit by plaintiffs against G. L. Edwards, in which a recovery of judgment for $162.40 was had, was an attachment proceeding, and that one of the grounds alleged in the affidavit for the writ of attachment was that G. L. Edwards had fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors, and that when that suit came on for trial before the justice it was compromised by plaintiffs dismissing the attachment upon condition that G. L. Edwards would consent to the entry of judgment against him for $162.40. The depositions of Mrs. Summers and Mrs. M. A. Ashworth were offered in evidence, which tended to prove that G. L. Edwards was indebted to Mrs. Summers and that she bought the premises in suit from G. L. Edwards in satisfaction of that indebtedness and directed bim to make the deed to her daughter, M. A. Edwards. There was other testimony that in the year 1893 plaintiffs brought a suit in equity against G. L. Edwards and M. A: Edwards to set aside the deed from G. L. Edwards to M. A. Edwards, as a cloud upon their title. That suit was dismissed in the year 1900.
This cause was submitted to the court and the finding and judgment was for the plaintiff. A timely motion for new trial was filed and by the court overruled, and the defendant in due time and proper form prosecuted his appeal from the judgment rendered in this
Opinion.
Tbe record in tbis cause discloses tbe assignment of numerous errors as grounds for the reversal of tbis judgment. We will give to tbe complaints of appellant sucb atention and consideration as we deem their, importance requires.
I.
It is insisted by learned counsel for appellant that there was no sufficient return of nulla bona upon tbe execution issued by tbe justice of the peace wbicb would authorize tbe issuance of tbe execution from tbe circuit court. Tbe return endorsed upon tbe execution was as follows:
“Executed tbe within writ in tbe county of Stoddard, State of Missouri, on tbe 2d day of May, 1893, no property found to levy tbis execution. A. H. Welborn, constable.”
In Ables v. Webb, 186 Mo. 233, the question of tbe sufficiency of tbe constable’s return of nulla bona was in judgment before tbis court, The return in that case recited: “By returning tbis writ no other property found upon wbicb to levy tbis writ.” In discussing tbis proposition it was there said by tbis court: “These constable returns must not be weighed as with a goldsmith’s scales, or viewed under a too powerful judicial microscope, or construed with sour and overnice precision and narrowness. Tbe courts should bold up to them tbe candle of common sense and interpret them with blandness and liberality to support titles long acquiesced in. If sucb returns comply with tbe spirit of tbe statute and are substantially in form, they are well enough. [Franse v. Owens, 25 Mo. 329; Ruby v. Railroad, 39 Mo. 480; Littlefield v. Ramsey,
It will be observed in that case that the case of Littlefield v. Ramsey, 181 Mo. 613, is cited approvingly, wherein it was held by this court, speaking through Burgess, J., that a nulla bona return reciting “no property subject to execution has been found” was sufficient. Measured by the rules announced in these recent and well-considered cases, we see no escape from the conclusion that the return in the case at bar was a substantial compliance with' the statute. .
n.
It is next insisted that the constable’s execution! was returned in less than ninety days after it was issued, and for that reason no execution could be sued out of the circuit court. The facts as disclosed by the record do not support this contention. The record discloses that the execution was issued on the 1st day of February, 1893, and directed to the constable of Liberty township, Stoddard county, Missouri, and made returnable in ninety days.' It only requires a simple calculation to demonstrate that this execution was returned at the proper time. Excluding the date of the issue, there were twenty-seven days in February, thirty, one in March, thirty in April and two in May, which makes ninety days.
III.
It appearing that a proper certificate of a nulla bona return by the constable upon this execution was
Section 4018, Revised Statutes 1899, provides for the filing of the transcript of judgments rendered by justices of the peace. Section 4019 provides that, “every such judgment, from the time of filing the transcript, shall have the same lien on the real estate of tlie defendant in the county as is given to judgments of circuit courts, and shall be under the control of the court where the transcript is filed; may be revived and carried into effct in the same manner and with like effect as judgments of circuit courts, and executions issued thereon may be directed to and executed in any county in this State; but no execution shall be sued out of the court where the transcript is filed, if1 the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, if there be one in such township, and, if not, to any constable in the county, and returned that the defendant had no goods or chattels whereof to levy the same.” We are of the opinion that under the provisions of this statute when the transcript of the judgment of the justice of the peace is filed in the office of the circuit clerk such judgment is carried into effect
In Jordan v. Surghnor, 107 Mo. 1. c. 524, Judge Macearlane, speaking for this court, thus treated this proposition. He said: “We do not think the objection raised to the sheriff’s deed can be sustained upon
.“II. The other objection to the deed was equally untenable. If a defendant in a judgment of a justice is not a resident of the county in which it is rendered, then the prior issuance of an execution by the justice is not a condition precedent to issuing one by the clerk of the court in which the transcript is filed.”
This contention must be ruled adversely to the appellant.
IY.
It is next insisted that the court erred in excluding the depositions of Mrs. Ashworth and Mrs- Summers. Upon this assigñment of error it is manifest that appellant has overlooked the disclosures of the record as to the action of the court upon the depositions
V.
Appellant insists that the court committed error in the admission of the depositions in evidence of W. R. Juden and W. C. Brown. These depositions were offered for the purpose of showing the return on the justice’s execution, which had been lost. We deem it unnecessary to discuss the admissibility of these depositions, for under the other disclosures of the record it is clear that the admission of them, even conceding that their testimony was inadmissible, was harmless, for the record discloses that the same facts referred to and embraced in the depositions of Juden and Brown were shown by the certified copy of the justice’s docket introduced by the plaintiffs, as well as by the original docket offered by the.defendant; therefore, we deem it unnecessary to burden this opinion with a discussion of a proposition which, in the end, could not affect the result of the trial.
VI.
It is next urged by appellant that plaintiffs are estopped from assailing the deed from G-. L. Edwards to M. A. Edwards, and asserting that it was a voluntary conveyance and therefore fraudulent as to existing creditors. This contention is predicated upon the fact of plaintiffs’ dismissing their attachment before the
VII.
It is next insisted that W. E'. Edmonds, who, it is claimed, is the present owner of this land by conveyances emanating from Mrs. M. A. Edwards, is an innocent purchaser, therefore his purchase should be" protected. It is only necessary to say upon that proposition that W. E. Edmonds is not a party to this proceeding and at no time did he file any motion, while the case was pending against the only defendant William McGaugh, to be made a party, under the provisions of section 3057, Revised Statutes 1899. Again it may be said that if any force or effect is to be given the disclosures of the record in this cause, then the question of being an innocent purchaser can find no resting place in this proceeding. The record before us shows that there was a proceeding begun in the circuit court of Stoddard county at the March term, 1894, by these plaintiffs against G. L. Edwards et al., in which proceeding the good faith and the validity of the deed from G. L. Edwards to his wife, Mary A. Edwards, was challenged; that at said March term, 1894, defendant applied for a change of venue and H. H. Bedford, Eisq., was selected as special judge. The cause was tried by Judge Bedford on the 15th of October, 1895, and was taken under advisement. On the 20th day of September, 1900, without any decision, the case was dismissed. At that time Judge J. L. Fort was on the bench. He testifies in this proceeding that he did not
We are unable to see how any one dealing with this property after the March term, 1894, of the circuit court of Stoddard county, could be treated as an innocent purchaser without notice. It is further made manifest from the disclosures of the record that W. E. Edmonds, for whom learned counsel invoke the aid of the rule applicable to innocent purchasers, was one of the attorneys who appeared for the defendant in the court below and appears in this 'court as an attorney representing the defendant; however, we repeat that W. E. Edmonds is not now and was not at any time a party to this suit, nor does the record disclose that he had any connection with the defendant as landlord or otherwise, excepting as counsel. The record before us discloses that it was admitted by counsel for plaintiffs and defendant at the time of the filing of this suit, August 31, 1900, that William McGaugh was in possession of the property in suit. The record also discloses that the only defendant to this proceeding, William McGaugh, at one time claimed by mesne conveyances under Mrs. M. A- Edwards, and that whatever interest he had was sold on the second day of August, 1900, under a deed of trust executed by him to S. P. Jeffers as trustee for J. L. Fort and George Houck. It is further apparent from the record that before he yielded possession to the purchaser of the property at the trustee’s sale, the present action of ejectment was brought against him, and none of the subsequent claimants saw fit to recognize him as a tenant or to join him in this suit.
ym.
It is next insisted that even though the deed from G. L. Edwards to his wife, Mrs. M. A. Edwards, was a voluntary conveyance and thereby fraudulent as to creditors, yet upon the death of her husband she had a dower and that W. E. Edmonds, by reason of the conveyances, at least is the owner of such dower interest and therefore there can be no recovery in this action.
Upon this proposition it is sufficient to say that it must not he overlooked that W. E. Edmonds is not a party to this proceeding, nor has he proceeded under the provisions of the statute to be made a party, and the record discloses an admission by the parties to this proceeding that William McGaugh was in possession of the property in dispute at the time this suit was instituted. While it may be said that, if the widow of G. L. Edwards was in possession of the land in controversy with an unassigned dower interest existing in her favor, the action of ejectment would not lie against her until such dower interest was assigned, that is not this case. The party against whom this suit was instituted, William McGaugh, who undoubtedly was in possession of the property at the commencement of the suit, and was the proper person against whom to bring the action, has no- dower interest in the premises, for whatever interest he had was foi’eclosed under the trustee’s sale on the 2d day of August, 1900.
IX.
This brings us to the consideration of the final question in which the sufficiency of the testimony to support the finding and judgment of the court, as disclosed by the record, is challenged.
Upon this proposition it is only necessary to say that we have carefully read in detail all of the testimony developed at the trial of this cause, and after a most careful consideration of it we see no escape from the conclusion that the finding and judgment1 of the trial court is fully supported by the showing made upon the trial. That at the time of the execution of the deed to his wife, Gr. L. Edwards was indebted to the plaintiffs, and that the deed conveying the premises in dispute directly to the wife was a voluntary conveyance, as shown upon the face of the deed, are facts which are not controverted in this proceeding. In addition to this it is shown by the testimony that Gr. L. Edwards somewhere near the time of making this voluhtary conveyance to his wife of the land in dispute also conveyed his farm to his stepfather, Mr. Newton; by this conveyance he deprived himself of all the real property he owned in Stoddard county.
In Snyder v. Free, 114 Mo. 1. c. 369, the law upon this proposition was approvingly quoted from Bump on Fraudulent Conveyances (2 Ed.), pp. 276 and 277, wherein the rule is announced that “when a deed is shown to be voluntary as to existing creditors, that is, when it is not founded on a valuable consideration, then ‘the burden of proof rests upon the donee to establish the circumstances which will repel the presumption of a fraudulent intent. The conveyance stands condemned as fraudulent unless the facts which may give it validity are proved by him. If no evidence is given to show that the donor had ample means to meet his liabilities, then the transfer must be deemed void as against creditors.’ ’ [Bump on Fraudulent Conveyances (3 Ed.), pp. 267, 277.] ”
In Hoffman v. Nolte, 127 Mo. 1. c. 135, the statement of the law as herein indicated by Mr. Bump in his work on Fraudulent Conveyances and approved in Snyder v. Free, 114 Mo. 360, was again expressly approved by this court, and it was expressly ruled in that ease that a purely voluntary conveyance of property by a debtor to his wife, as to a prior existing creditor, is presumptively fraudulent in law, citing
We have then in this case the existing indebtedness of G-. L. Edwards, his voluntary conveyance of the land in dispute to his wife and in addition the conveyance to his stepfather, which deprived him of all the real estate that he owned in Stoddard county, and to rebut this presumption we have the testimony of the wife to whom the voluntary conveyance of the property was made, together with that of her mother, and their testimony is to the effect that the conveyance to the wife was made in satisfaction of a debt due Mrs. Summers, the mother of Mrs. M. A. Edwards. Doubtless the trial court in considering the testimony developed at the trial, kept in view the well-settled rules applicable to transactions between husband and wife. In Benne v. Schnecko, 100 Mo. 1. c. 257, this court, in discussing the proposition as to a transaction between husband and wife, thus stated the rule: “There is no doubt but what a husband may make a valid settlement upon his wife, for a valuable consideration. ‘Such settlements, however, are always watched with considerable jealousy, on account of the relative situation of the parties, and the convenient cover they afford to a debtor to protect his property and impose upon his creditors, and the payment of a valuable consideration must be made out By proof of the most unquestionable character.’ [Bump, Fraud. Conv. (3 Ed.), 306; Besson v. Eveland, 26 N. J. Eq. 468 ; Humes v. Scruggs, 94 U. S. 22.]”
In Holloway v. Holloway, 103 Mo. 1. c. 282, Judge Black, speaking for this court, stated the rule in this language: He said: “Transactions between husband and wife should be closely scrutinized when they come in conflict with the claims of creditors, for the marital relation affords a convenient cover to protect the property of the debtor from his creditors.”
Applying the rules as herein indicated to all of the facts as developed in this case, including the testimony of the wife of Gr. L. Edwards, the debtor and her mother, taking into consideration their relationship, their interest in sustaining the conveyance to Mrs. Edwards, their natural inclination to maintain its validity, we are unwilling to say, in view of all the facts
We have given expression to our views as herein indicated upon the leading and most important proposition disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.