63 Mo. App. 22 | Mo. Ct. App. | 1895
On the twenty-second of March, 1894, an information was filed against defendant in the circuit court of St. Louis county, charging him with executing a fraudulent conveyance of certain real estate, and putting the same in use as having been made in good faith, with intent to defraud certain creditors mentioned in the information. The information was signed by the prosecuting attorney. Below his signature there was written an undated and unsigned jurat. This information recited, among other things, in avoidance of the statute of limitations of one year, that a former information filed against the defendant for the same offense was quashed September 18, 1893.
Defendant gave bond for his appearance at the following term of the court, at which time he applied for a change of venue, which was allowed by the court on the eighth of June of said term upon the recognizance of defendant then entered into for his appearance at the next term of the circuit court of Grasconade county. During the same term of the circuit court of St. Louis county, whereat the change of venue was thus granted, the prosecuting attorney filed a motion to set aside the said* order granting the change of venue and for permission to the clerk to affix to the form of jurat on the information his official signature, the seal of the court and the date of March 22, 1894, being the time when the information was filed. On the eighth of August, and at the same term, the court sustained said motion to set aside the order changing the venue, and granted leave “to file an amended information.” At the following term on November 30, 1894, the court made a further order giving leave
The evidence disclosed that the defendant made a deed on the twenty-eighth of September, 1891, to the real estate described in the information to one Hubbard for the consideration of $1,436.50 and the assumption by the grantee of prior encumbrances amounting to $3,680; that, on the same day, said Hubbard released five deeds of trust in his favor made by defendant on the same property and securing an aggregate indebtedness of $1,233.38 with interest from the date of the several deeds of trust; that these two conveyances were filed for record within a few moments of each other, the release first, and the deed immediately thereafter; that about four days prior to these conveyances the defendant had a conversation with certain of his creditors, named in the information, and their attorney, and sought to secure a continuance of the suits then pending for trial against him; that in these conversations he said that, if the,suits in question were' not continued until January, “it would be worse for them and better for him.” The continuance was refused, and, on October 7, 1891, said creditors secured judgments against defendant aggregating $2,274.52. Executions under these judgments were levied upon the property deeded by defendant to Hubbard, which was sold by the sheriff and purchased by said creditors.
It is insisted that the order of court, changing the venue to Gasconade county upon the recognizance of defendant to appear at that court, was divestiture of
It is next urged that, conceding the power in the circuit court of St. Louis county to set aside its order for change of venue, it erred, on the facts in this record and against the objection of defendant, in directing the prosecuting attorney to amend “the affidavit to the
As the ruling of the court against the right of defendant in this respect necessitates a reversal of this case involving a new trial, it is proper to say that the statute (E. S. 1889, see. 3568) under which this prosecution was taken creates two offenses: First. The one, a mere fraudulent conveyance for the making of which the grantor is guilty of a misdemeanor. Second. A fraudulent conveyance, and putting the same in use as made in good faith, which may be done by either or both of the parties. In neither case, however, could a conveyance under this statute be deemed fraudulent, unless it had the elements essential to create a fraudulent conveyance as defined in the civil law. One of these is that the possible operation of the conveyance shall be injurious. to creditors; for, if it could not prejudice the rights of creditors, the conveyance is not open to attack by them as fraudulent and can not be annulled on that ground. As an illustration of this it is apparent that a conveyance by a debtor' of property exempt from execution can not be impeached as fraudulent, irrespective of the intent of the parties. Hart v. Leete, 104 Mo. 315; Story on Equity Jurisprudence, sec. 366; Beach on Modern Equity, sec. 106. On the same principle it would seem the conveyance of property encumbered beyond its value by valid record liens could not be assailed, since nothing would be parted with in which the creditors have any interest.
The judgment herein is reversed and the cause remanded.