69 Mo. 72 | Mo. | 1878
This is a bill in equity to divest the title out of defendants and vest it in plaintiff, with a count at law asking for the possession of the premises. It is alleged
Plaintiff", on these facts, prays the coui’t for a decree divesting all the right, title and interest of defendants in said land out of them, and vesting the same in plaintiff'. The petition also contains a count asking for the delivery of the possession of the pi’emjses.
Defendants, in their answer, deny all the averments of the petition, except that they admit the purchase of the property by Cravens in 1871, only denying that he bought with any knowledge of the rights or equities of plaintiff".
On trial of the cause plaintiff’s petition was dismissed and judgment rendered for defendants. We are asked to review this action of the trial court, on the ground that it was against the law and evidence.
Plaintiff offered in evidence the deed of trust, dated December 14th 1867, made by J. C. E. and Cornelia Maloney conveying to Jamison the land in question to secure the payment to plaintiff" of the note mentioned in the peti-, tion; and also a deed from said Jamison, dated April 9th, 1873, conveying the interest of said J. C. E. Maloney in said land ft) plaintiff. Plaintiff' next offered in evidence a decree of the Jackson circuit court rendered in 1872, in the case of John K Cravens, plaintiff, against J. C. F. and Cornelia Maloney and, Win. F. Allen. This decree, which is of great length, substantially states that the default of defendants heretofore taken be made final, and that the allegations in plaintiff’s petition stand confessed; that defendant, J. C. E. Maloney, on the 1st day of March, 1866, was largely indebted and insolvent; that he purchased the property of Allen in the three deeds mentioned in the petition conveying the land to Mrs. Maloney; that he caused
The above was all the evidence, and with it before the court, we are at a loss to perceive on what ground the bill was dismissed and judgment rendered for defendant. It is, however, claimed by counsel in support of the judgment, that the evidence received was inadmissible, especially that relating to the decree, and that, therefore, the judgment was rightful. No objection being urged here by counsel to any other evidence received, except tlie decree, we will confine our investigations to it.
Under this evidence, as intimated by this court in the case of Cravens v. Jamison et al., 59 Mo. 69, where another branch of this case was before the court, we cannot perceive how the title of plaintiff, whether derived from husband or wife, or from both, can be regarded as in any way subjected to the defendants’ claim. The deed of trust executed by Maloney and wife, ou the 14th day oí December, 1867, to secure the note of $2,200, passed all the title which both or either of them had in the land in controversy, and created a valid and subsisting lien thereon; and whatever title was acquired by Cravens, by virtue of the sale made under an execution, which issued in 1871, on a transcript of judgment obtained by him before a justice of the peace in 1870, was held in subordination to plaintiff’s lien. The fact that, at. and prior to the execution of said deed of trust, the legal title to the land conveyed by it was in the wife, and so appeared of record, and the fact that such title had been conveyed to the wife, at the instance of the husband, (the land having been bought and paid for by him,) for the fraudulent purpose of defeating his creditors in the collection of their debts, could not destroy the legal effect of the deed of trust in passing the husband’s interest in the land. Its only effect would.be to render'the conveyance to the wife void as to creditors, and subject the land to the payment of the husband’s debts. Taking the fact to be as alleged by Cravens in the proceeding on which the judgment by default read in evidence was obtained, that the title to the land in dispute was placed in Mrs. Maloney, by her husband, to defraud his creditors, the deed executed by Jamison, the trustee, in pursuance of a sale made under the deed of trust conveying the husband’s interest in the land, relating back as it did to the 14th day of December, 1867, conferred upon plaintiff a better title
ment reversed and cause remanded.
Reversed.