Zoll v. Soper

Apr 15, 1882
Reporters:
Before:
Henry
Henry, J.

Plaintiff sues as the administrator of the estate of Jacobs & Kelly ; and in his petition alleges that in April, 1866, he, as administrator of Jacobs & Kelly, obtained a judgment against John Yelton in the Johnson circuit court .for $2,554.79, and in May following on an execution issued on said judgment, realized about $1,268: *461that Yelton had no other property out of‘which the debt” could be made, except an equitable title to the land in controversy herein, sixty acres, which it is alleged, was purchased by Yelton with his own money, but the deed at his-suggestion ‍​‌​​‌​‌​‌‌​​‌‌‌​​​‌​​‌​‌​‌‌‌‌​‌​​​​‌‌​​​​​‌​‌​​​​​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​​‌​​​‌​​‌‌​‌​‌​​​‌‌​‌‌‍was made to his wife ; and it was charged that this was a contrivance to delay and defraud his creditors;, that Yelton died intestate in the fall of 1866, and that his-widow, Sally, has since intermarried with and is now the wife of Charles Soper. The prayer of the petition is that said real estate be subjected to the payment of said judgment, and that defendant Sally be declared to hold the-land in trust for payment of said judgment.

The answer denies all the allegations except that Sally Soper has the legal title to the land, and alleges that Francis M. Cockrell, William Cornetz and William Zoll purchased all the right, title and interest in and to the judgment in favor of Zoll, as administrator, and are the-real parties in interest, and that plaintiff ought not to-maintain this action. By his replication, this allegation is-denied by plaintiff. The court on hearing the cause made a decree, adjudging that the judgment aforesaid was a lien on the land, and that the land be- sold to satisfy the balance-due on the judgment, and that out of the proceeds ‍​‌​​‌​‌​‌‌​​‌‌‌​​​‌​​‌​‌​‌‌‌‌​‌​​​​‌‌​​​​​‌​‌​​​​​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​​‌​​​‌​​‌‌​‌​‌​​​‌‌​‌‌‍the sheriff should first satisfy the costs of this suit, and then pay to plaintiff the balance due on the judgment with ten per cent interest thereon from the 7th day of September,. 1866.

i ™ t^nVtoset°asidelimitation. The bill of exceptions haying been stricken out, on motion of respondent, we are restricted in our examina-. tion of the cause to the record proper. That petition states a case of fraud against Sally Soper and her former husband, John Yelton, is clear; and while in such a case, the creditor who seeks to subject the land to the payment of his judgment, might have the land seized and sold under execution, he may in the first place resort to equity, to have the fraudulent deed set aside in order to remove the-cloud from the-*462title, and‘sell the land to the best advantage. It is contended, however, that the judgment having been rendered in April, 1866, and this suit not having been instituted until August, 1873, the lien of the judgment had expired, and, therefore, plaintiff could not maintain this action. By section 11, page 791, Wagner’s Statutes, volume 1, “Executions ‍​‌​​‌​‌​‌‌​​‌‌‌​​​‌​​‌​‌​‌‌‌‌​‌​​​​‌‌​​​​​‌​‌​​​​​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​​‌​​​‌​​‌‌​‌​‌​​​‌‌​‌‌‍may issue upon a judgment at any time within ten years after the rendition of such judgment.’ While the right to have gn execution on the judgment continues, the creditor may institute his suit to set aside a fraudulent conveyance made by his debtor, and subject the land to the payment of his debt. A sale under an execution in such case would be in effect but the sale of a law suit, and the land would be sacrificed, and no one could possibly be benefited materially, but the purchaser — and he only in the event that he succeeded in setting aside the fraudulent deed. While the creditor might have the land sold on execution, equity will not compel him to pursue that ruinous course.

2__.__. jurisdiction. It is insisted by appellant’s counsel, that plaintiff’s judgment should have been presented to the probate court and assigned to its class, and the relief he now asks been sought in that court, and Titterington v. Hooker, 58 Mo. 593, is relied upon. But it has been repeatedly held by this court, that an administrator cannot impeach a voluntary conveyance of his intestate ‍​‌​​‌​‌​‌‌​​‌‌‌​​​‌​​‌​‌​‌‌‌‌​‌​​​​‌‌​​​​​‌​‌​​​​​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​​‌​​​‌​​‌‌​‌​‌​​​‌‌​‌‌‍for fraud as to creditors, although the estate may be insolvent. Brown‘s Adm‘r v. Finley, 18 Mo. 375; George v. Williamson, 26 Mo. 190; Merry v. Freemon, 44 Mo. 518. In George v. Williamson, it was held that any .creditor may, in an equitable proceeding, have a conveyance in fraud of creditors set aside, and that a creditor who first files his petition obtains a priority if a sale is decreed; and that at the death of the fraudulent grantor the land so conveyed constituted no part of his estate. The administrator is not a necessary or proper party to a suit to set aside a conveyance of his intestate, alleged to have been made in fraud *463of creditors. Merry v. Fremon, 44 Mo. 518. Land conveyed by the intestate in fraud of his creditors, is not assets of his estate, and this distinguishes this from the case of Titterington v. Hooker, where the land belonged to the intestate at his death, and” was subject to administration. If the land in controversy should be sold for more than may be required to pay plaintiff’s demand, the surplus would not be assets of the estate, but would belong to Mrs. ‍​‌​​‌​‌​‌‌​​‌‌‌​​​‌​​‌​‌​‌‌‌‌​‌​​​​‌‌​​​​​‌​‌​​​​​‌‌‌‌​​‌‌‌​‌​‌​‌‌​‌​‌​‌​​​‌​​​‌​​‌‌​‌​‌​​​‌‌​‌‌‍Soper, subject to the demand of any other creditor of her former husband who might maintain his suit against her for the purpose of enforcing its payment by her.

3 __. interest. The court having found that the original judgment in favor of plaintiff against Telton bore ten per cent interest per annum, there was no error in the allowance -¿he decree herein of that rate of interest on plaintiff’s demand from the date of the original judgment.. Discovering no error in the record, the judgr ment, with the concurrence of all the judgeB, is affirmed.