Ziekel v. Douglass

88 Mo. 382 | Mo. | 1885

Sherwood, J.

The object of the plaintiff is to set aside as fraudulent a deed made October 8, 1878, by defendant, Arnot P. Douglass, to his brother and co-defendant, Jas Douglass. This deed was not put to record till January 13, 1879. The judgments upon which, executions were issued under which the property in question was sold, were not rendered until over eight months after the deed was made, and over five months after the deed was recorded. It does not appear in evidence when the-debts on which these judgments were rendered were contracted. It wotdd seem that there were no debts at the time the deed sought to be set aside was made, save the debt due to James Douglass, his brother, and those for which he was responsible as security. These sums amounted to as much as the consideration mentioned in the deed, and a little more. Thus : $1,700, Evans note and interest; the Rehard note, $660.00; Pollard debt for $270.00, and interest; $70.00 paid on Shaffer, which was assumed, and another note for about four hundred dollars, making in all some $3,100.00.

In addition .to that, evidence was offered without objection that Arnot P. Douglass had a homestead in the land he first owned, the deed to which was filed in 1872, and that he sold this place and applied the proceeds to-the purchase of the “Polo place,” which he afterwards occupied as a homestead, and which place he subsequently conveyed, as aforesaid, to his brother, James Douglass. Some of the authorities hold that a homestead right must be specially pleaded. Others hold that under the general issue, as pleaded in the case at bar, you may show a right to a homestead. As no objection was made to the introduction of evidence of the character mentioned, any formal plea of homestead, even if one were necessary, may be considered as waived. Looking at the matter in this light the creditors whose claims are the foundation of the present suit, were, not interested in the homestead or its proceeds so far as concerns the fifteen hundred dollars, for that amount was beyond their reach, and this sum deducted from the amount paid and assumed by James-Douglass for his brother would leave but sixteen hundred dollars, as to which his creditors could lay any claim, and this sum would be covered by other debts paid by James Douglass, leaving out of consideration •the Evans note and interest, as to which, the chief objection is ijrged.

It must be conceded that there are some circumstances in this case not free from grave suspicion, but ■deferring, as we must, to some extent, to the trial court, 'as has been our wont ( Ryan v. Gilliam, 75 Mo. 132), qnd looking to the fact, that so far as this record discloses the creditors under whose judgments plaintiff bought, were subsequent creditors, as. to whose claims stronger evidence is required as to fraudulent iuteut on the part of the debtor than when the debtor is in bankrupt circumstances, and the creditors are existing creditors at the time the conveyance charged to be-fraudulent is made. The judgment of the lower court, in consideration of the foregoing facts and considerations, should be affirmed.

All concur.