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hands of the grantor, or placing it in the the conduct of the parties thereto, was to hands of a third person, to be produced or mislead and deceive the public, and induce suppressed accordingly as exigencies may de- credit to be given to Boggett (the grantor) mand, are instances of secrecy that are with- which he could not have obtained if the in the rule.” Bump, Fraud. Conv. (3d Ed.) truth had been known, and therefore the 39. There are many cases where the exist- whole scheme was fraudulent as to subseence of an intent to hinder, delay, or defraud quent creditors, as much so as if it had been is not a question of fact, but is one of law. contrived with that motive, and for that obEvery man is presumed to intend the nec- ject." The recent case of Bank v. Doran, essary consequences of his act, and, if an act 109 Mo. 42, 18 S. W. 836, was a proceeding necessarily delays, hinders, or defrauds cred- by a judgment creditor to postpone two itors, then the law presumes that it was done deeds of trust executed by Doran to Bartle. with a fraudulent intent. Bump, Fraud. Doran was a large dealer in cattle and hogs, Conv. (2d Ed.) 22; Wait, Fraud. Conv. (2d and the deeds of trust covered two farms. Ed.) § 9. Full and complete recognition is The trial court found-and the finding was given to this principle of law in Walsh v. approved by this court-that there was an Chambers, supra, which was a case of an agreement between the parties to the deeds omission to record a deed. In Hildeburn v. that they should be withheld from record, Brown, 17 B. Mon. 779, the plaintiffs sought and their existence kept concealed, so as not to foreclose an unrecorded mortgage against to impair the credit of Doran; that the deeds a subsequent assignment for the benefit of were thus withheld, and Doran continued to creditors. There had been an arrangement

carry on his business; and that the agreenot to record the mortgage, except in case of ment and withholding the deeds from record danger of the failure of the mortgagor. The gave Doran a false and fictitious credit in court said: “The effect of the arrangement, the community. On these findings, we held though it may not have originated in an ac- the deeds to be fraudulent as against the tual fraudulent or evil purpose, was to se- creditors of Doran. The conclusion reached crete from the public eye the true condition in that case was approved in Bank v. Frame, of the debtor, and thereby enable him, under 112 Mo. 515, 20 S. W. 620. It is held in Wisthe semblance of being the owner of unin- consin that withholding from record a mortcumbered real estate, to deceive and mislead gage at the request of the mortgagor operother persons by inducing them, upon the ates as a fraud upon persons who deal with faith of his supposed unembarrassed condi- and give credit to the mortgagor upon the tion, to give him credit which would other- supposition that the property which he apwise have been withheld. * * * If not di- parently owns is unincumbered; and that it rectly within that class of acts which the is a legal fraud, though there is no actual law denominates constructive fraud, it ap- intent to defraud. Paper Co. v. Guther, 67 proximates so nearly to it that the party Wis. 101, 30 N. W. 298; Sanger v. Guther, 73 avowing himself a participant in such trans- Wis. 356, 41 N. W. 436. action ought not to receive the countenance In applying these principles of law to the or aid of the chancellor in enforcing any lien case in hand, it is to be observed, in the first or claim growing out of it or against third place, that these deeds did not, when made or persons.” Hilliard v. Cagle, 46 Miss. 309, when recorded, express the truth. Though a was a bill brought by judgment creditors to deed absolute on its face may be shown to be cancel a deed of trust which covered the a mortgage, still such a conveyance is generplantation, storehouse, and merchandise of ally held to be a badge of fraud, because it the grantor. It was made to secure his fac- affords a convenient cover for fraud upon tors for advances made and thereafter to be creditors. Wait, Fraud. Conv. (2d Ed.) 8 made. The grantor was engaged to a large 238. Now, Buck and McCrosky were, by extent in the purchase and sale of cotton. means of these deeds, enabled, in part at The deed of trust was made in December, least, to obtain a credit with the plaintiff to 1866, and it was agreed it should not be re- three times the amount of their capital in corded until the last of January following. their banking business, and to incur a furThe grantor supposed he was solvent, and it ther contingent liability on rediscounts to seems the beneficiaries entertained the same twice the amount of such capital. They were belief. The reason assigned for not record- daily creating debts at their place of busiing the deed was that to do so would injure ness in Dekalb county, and this fact must the credit of the grantor. Insolvency over- have been well known to the plaintiff, for took him in less than 60 days, because of a the business relations existing between it decline in cotton. There was no fraudulent and them, as disclosed by the evidence before purpose to defeat existing or future creditors. recited, gave the plaintiff such knowledge. The court, in disposing of the case, lays down Buck was in possession of the property, and the proposition, before stated, that a he and McCrosky were doing business in a must be conclusively taken to intend the natu- part of it, and he was the apparent and reral and logical result of bis acts. The court puted owner of all of it. Had these deeds expressed its conclusion in these words: “We been recorded, depositors and home creditors are of opinion that the natural and logical would have been put upon their guarc. effect of the agreement and assignment, and Withholding the deeds from record for so


long a time gave Buck & McCrosky a finan. which were admitted: First, that the gradcial standing and credit which they could ing complained of was done in reducing the not otherwise bave had, and this fact is street to an original or first grade, which shown by the circumstances in evidence, as was reasonable and constructed in a prudent well as by the direct and positive statements manner; second, that no money had been of the defendants, made on the witness appropriated to pay any claim for damages stand. Indeed, we feel bound to say the incident to said grading. The assignments deeds were not recorded because it was be- of error will be noticed in their order. lieved to do so would injure the business of 1. The failure of the city to appropriate the grantors. Looking to the character of money to cover the damages accruing from business in which Buck & McCrosky were the grading is no defense. The statute engaged, and which was well known to the which is invoked by defendant (section 1303, plaintiff, the necessary and inevitable result Rev. St. 1889) has no application to a case of withholding these deeds from record was where a city has committed a tort upon one to give Buck & McCrosky a false financial of its citizens. To permit it to plead its own standing, and to mislead and deceive the de- neglect to provide for damages of its own fendants and other depositors; and the plain-commission would be subversive of all distiff must be held in law to have intended tinctions between right and wrong. It canthat result, though actuated by no fraudulent not escape the liability imposed upon it by or evil motive. The deeds must be held the constitution in this manner. Hickman v. fraudulent as to the defendants. The judg- Kansas City (Mo. Sup.) 25 S. W. 225; Jami. ment is therefore reversed, and the cause re- son v. City of Springfield, 53 Mo. 224. manded, to be proceeded with according to

2. Counsel for the city contends that, inas. this opinion. All concur.

much as it stands admitted that the grading complained of was done in reducing the street to an original or first grade, plaintiffs

cannot recover under the pleadings. In SMITH et al. v. CITY OF ST. JOSEPH. other words, they assume that the constitu(Supreme Court of Missouri, Division No. 2.

tion of 1875 does not give an action for damJune 12, 1894.)

ages occasioned to property by grading the Cities-CHANGING GPADE OF STREETS-DAMAGES.

streets for the first time; that it must be 1. Rev. St. 1889, 8 1303, forbidding appro

presumed that every person purchasing a lot priations in excess of revenue, and annulling on an ugraded street did so in anticipation acts of officers which impose on the city liabili- that the street would some day be brought ty for money not appropriated, does not ex

to a grade by the city to conform to other empt a city from its constitutional liability for damages for change of a street grade, though

streets and for all necessary draining and no money has been appropriated therefor.

urban improvements. It is this constitution2. Const. art. 2, $ 21, forbidding damage al question alone which gives this court juristo private property for public use without compensation, makes a city liable for damages

diction of the case, as otherwise it is clearly caused by a first material change of grade

without our jurisdiction. We are relieved from the natural surface. Davis v. Railway of further discussion of the question by the Co. (Mo. Sup.) 24 S. W. 777, and Hickman v. Kansas City (No. Sup.) 25 S. W. 225, followed.

very satisfactory and convincing decision in 3. Lots damaged by a change of grade in

Davis v. Railway Co., 24 S. W. 777, in which front of them are chargeable only with the division No. 1 of this court, through Macspecial benefits arising from the chance of farlane, J., held that, under section 21 of argrade in front of them, not with any share in the general benefit to them and others.

ticle 2 of the constitution of 1875, a city is

liable to abutting property owners for a Appeal from circuit court, Buchanan coun

material change of the grade of a street ty; Henry M. Ramey, Judge.

from the natural surface. That decision was Action by Louisa Smith and husband

subsequently approved by this court in banc against the city of St. Joseph for damages

in Hickman v. Kansas City, 25 S. W. 225. to abutting lots caused by change of grade

As plaintiffs' first instruction was consistent of a street. Judgment for plaintiffs. De

with those decisions, no error was commitfendant appeals. Affirmed.

ted in giving it. Huston & Parrish, for appellant. Vinton 3. The only remaining assignment is that Pike and Willard P. Hall, for respondents. which complains of the action of the circuit

court in amending defendant's fifth instruc. GANTT, P. J. Mrs. Smith and her hus- tion by inserting therein the words “in front band brought this action against the city of of said lots." The instruction as asked by St. Joseph for damages which they allege defendant was in these words: “(5) Even if were done to certain lots belonging to Mrs. the jury should find that the plaintiffs many Smith, in block 11 in the St. Joseph Eastern have been injured by the grading of the Extension addition to said city, by grading street in front of their property, yet, as Twenty-Third street, on which said lots abut- against such damage, if any, you are in. ted. Plaintiffs recovered judgment for $250, structed to deduct such special benefits, from which the city has appealed. The city if any, as have been conferred upon plainrelied for its defense to the action upon a tiffs' said lots by the grading of Twengeneral denial, and upon the following facts, ty-Third street; and if such benefits are.

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in the opinion of the jury, equal to or this too favorable instruction which defendin excess of the plaintiffs' damage, then your ant itself procured. The judgment is af. verdict must be for the defendant." The firmed. words "in front of said lots" were inserted at the end of the fifth line, after the words BURGESS and SHERWOOD, JJ., concur. "Twenty-Third street,” by the court, so as to make it read: “(5) Even if the jury should find that the plaintiffs may have been injured by the grading of the street in front of

HUHN V. LANG et al.' their property, yet, as against such damage,

(Supreme Court of Missouri, Division No. 2. if any, you are instructed to deduct such

June 12, 1894.) special benefits, if any, as have been confer

RETURN OF EXECUTION IsstANCE AGAINST Nonred upon plaintiffs' said lots by the grading

RESIDENT. of Twenty-Third street 'in front of said lots;' 1. Under Rev. St. '1889, § 6302, making and if such benefits are, in the opinion of the executions issued by a justice returnable in 90 jury, equal to or in excess of plaintiffs' dam- days, a prior return is premature.

2. Under Rer. St. 1889, 8 6287, providing age, then your verdict must be for the defend

that no execution shall issue from the circuit ant." We do not think the words inserted

court on a transcript from a justice, where by the court altered the meaning of this defendant is a resident of the county, unless an instruction. Learned counsel contend that

execution from the justice has been issued and

returned nulla bona, an execution issued from they had the effect to limit the special bene

the circuit court without such prior return is fits to such benefits only as resulted to the valid if the defendant is a nonresident at the property from the grading of the street di

time of issuance. rectly in front of said lots. We think this is

Appeal from circuit court, Jackson county; true, but it does not therefore constitute James Gibson, Judge. error. The city cannot set off the general

Action by Reka Huhn against William 1. benefits that would inure to plaintiff, in com

Lang and others to set aside deeds. From a mon with all property owners, from the

judgment for plaintiff, defendants appeal. grading of this street. The property owner Reversed. is confined to the damage specially done to his lot, and the benefits to be offset are those

Thompson & Wilcox, for appellants. Fyke, that grow out of the improvements which

Yates & Fyke, for respondent. cause the damage to his property. He is not chargeable with those general benefits which GANTT, P. J. This was an action comhe would derive, in common with other land- menced in the circuit court of Jackson county owners along said street, by having a well- to set aside a sheriff's deed and a subsequent graded street leading to or from his prop- quitclaim from the judgment debtor to the erty. However plausible and reasonable it purchasers. In the year 1888, John A. Mcmay appear that he ought not to recover Donald was the owner of the north 34 feet damages if, in common with all other abut- of lot 4, Troost Avenue Heights, an addition ting proprietors, his property has been en- to Kansas City, Mo. McDonald conveyed the hanced in value by the general improve

lot to John H. Reed, and Reed sold and ments, it is now settled in this state that he conveyed it to plaintiff, Reka Huhn, in 1889. is not chargeable with such general improve- Willia in I. Lang obtained a judgment against ment in front of others. Hickman v. Kansas McDonald on June 9, 1888, for $66 and costs. City (Mo. Sup.) 25 S. W. 225.

before J. T. Clayton, a justice of the peace The fact is that defendant succeeded in within and for Kaw township, in Jackson getting an instruction from the court more county, and on June 12, 1888, filed a tranfavorable to it than is warranted by our de- script of said judgment in the office of the cisions. The court instructed the jury that clerk of the circuit court of said county prior the measure of damages was the difference to the conveyance to Reed by McDonald. between the market value of the property On the 28th day of September, 1858, the jusbefore the grading and the market value tice issued an execution on said judgment, after the grading, caused by said grading. directed to, and it was received by, the conUnder this instruction, the jury might have stable of Kaw township. Ezra W. Kingswell considered that the grading of this bury was constable at the time, and received street along its whole length increased the said execution. His term of office expired value of every foot of ground abutting on it in November, and Thomas C. Clary was electfar in excess of all special damages result: ed and qualified as his successor as constable ing to any lot on it, and in this manner have of said township. Kingsbury turned over found there was no damage to plaintiffs. the execution to Clary without having reThe rule announced in the instruction, it turned it. Clary returned it with the folseems to me, has much to commend it; but lowing indorsements on it: "Received by it has been determined otherwise by this me this 28th day of September, 1888. E. W. court in banc, without dissent, and to its Kingsbury, Constable of Kaw Township." decision I yielded my own individual opinion "Executed the within execution in the county at the time. It is clear, however, that no of Jackson and state of Missouri on the 26th harm could have resulted to defendant from day of December, A. D. 1888, by making

diligent search, and failed to find any goods or chattels on which to levy this execution since the 28th day of September, 1888, and returned the same not satisfied. Thomas C. Clary, Constable, by H. J. Bone, D. C." McDonald was a resident of said township at the time the justice rendered judgment, and remained such until June, 1889, since which date he has been a nonresident of the state. Lang sued out an execution from the office of the circuit court on December 5, 1889, and the lot was sold on January 14, 1890, and Lang became the purchaser and obtained his sheriff's deed, which recites a notice of the sale in the Kapsas City Times, and a sale of all the right, title, and interest of McDonald in said lot. This sheriff's deed was duly acknowledged and recorded in the recorder's office in Book B, No. 390, p. 306. Lang, on June 1, 1890, sold and conveyed said real estate to defendant Sarah De Viney. Sarah De Viney and her husband, defendant John De Viney, on July 1, 1890, executed a deed of trust to defendant George Hoffmann to secure to defendant Lang the sum of $850. On the day of February, 1890, defendant McDonald executed a quitclaim deed con. veying said real estate to defendant Lang. The transcript of said justice's judgment referred to in said sheriff's deed was filed in the office of the clerk of the circuit court aforesaid prior to the conveyance of said real estate by said McDonald to said Reed, plaintiff's grantor; and hence, if the law has in all respects been complied with in reference thereto, the same constituted a lien upon the said real estate. Plaintiff asks that the sheriff's sale be set aside, and that the various deeds above mentioned under which defendants claim be declared null and void for the following reasons: (1) That the execution issued by the justice of the peace was returned too soon; (2) That the execution issued by the justice of the peace was received by one constable and returned by another, his successor. Defendants' answer admits the matters set out in the petition as to the conveyances, and denies other matters not now in issue.

By the statute, executions issued by justices of the peace are required to be dated on the days they are issued, and be returnable in 90 days from their date. They are required to be directed to the constable of the township where the justice resides, and run against the goods and chattels of the defendants. The party recovering the judgment can file a transcript in the office of the clerk of the circuit court, and it becomes a lien on real estate from the time of filing the transcript as judgments of the circuit courts; but no execution can be sued out of the circuit court on the transcript judgment if 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 defendant resides, and returned that the defendant had no goods or

chattels whereof to lery the same." Rev. St. 1879, $ 2999; Rev. St. 1889, $ 6287, amended.

1. It will be observed that this is a direct proceeding to set aside the sale, not a collateral attack upon it. The rule has obtained in this state since the decision in Dillon v. Rash, 27 Mo. 243, that when the time is fixed by law for the return of an execution it should not be returned before that time, and, if it is, it is an irregularity. Marks v. Hardy, 86 Mo. 232. The statute gave 90 days in this case. The writ issued September 28th and was returned December 26th. By section 6570, Rev. St. 1889, "the time within which an act is to be done shall be computed by excluding the first day and including the last.” Excluding September 28th, the day of issue, and counting the 26th of December, we have 89 days. This execution was returned prematurely. If the right to an execution from the office of the circuit clerk de pended, then, on the execution from the jus. tice, and a nulla bona return at the expiration of 90 days, it is clear that the plaintiff in that judgment was not entitled to it; but it is only when the defendant is a resident of the county that there is any restriction placed upon the transcript judgment creditor. Under all other circumstances he has all the privileges and rights that pertain to creditors who have obtained judgments in the circuit court in the first instance. The sheriff's deed in this case makes no recital of the issue of an execution by the justice and a nulla bona return, and the agreed statement of facts concedes that McDonald became a nonresident of the state in June, 1889, and continued so until the execution was issued by the circuit clerk, December 5, 1889. The language of the statute is that "no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county." "If he is a resident" when? Manifestly when the execution is sought from the circuit court. If he is not then a resident, there is no obstacle in the way of obtaining the execution. It goes as a matter of right as on any other judgment of the circuit court. This was so ruled by this court in Sachse v. Clingingsmith, 97 Mo. 406, 11 S. W. 69, and we think correctly. The deed was sufficient on its face, and the facts aliunde the deed support, instead of impeach, its recitals.

2. It becomes unnecessary to pass upon the other contentions,-that Kingsbury had no right to turn over the justice's execution to Clary, his successor. The statute provides that in such cases a sheriff shall turn over all unexecuted writs to his successor. Rev. St. 1889, § 4958. The duties and powers of the constable within the jurisdiction of a justice are identical with those of a sheriff, and the same reason exists why the unexecuted writs in his hands should be turned over to his successor as in the case of a sheriff. In Vermont and Oregon the word "sheriff” has been treated in similar statutes as generic,

and broad enough to include constables. Banks. Julius J. Stowe died in 1874, the Winchell v. Pond, 19 Vt. 198; Hume v. Nor- owner of the land in dispute. Clarence ris, 5 Or. 478. There is much good sense and Buell and Elizabeth B. Stowe administered reason for the conclusion which these courts upon the estate. They conveyed this secreached, but it is not necessary for the de tion of land to James S. Martin and William termination of this cause, and we express no L. French by an administrators' deed dated opinion under our statutes. We think the the 9th January, 1877. circuit court erred in setting aside the sale, The first contention is that this adminisand its judgment is reversed.

trators' deed is void, because the order of

sale was granted on the petition of Buell BURGESS and SHERWOOD, JJ., concur. alone, the administratris not joining there

in. As to this question the record discloses the following facts: Buell presented to the

probate court a petition for an order to sell STOWE et al. v. BANKS et al.

this and other real estate, describing him(Supreme Court of Miss uri, Division No. 1. self therein as “one of the administrators of July 9, 1894.)

the estate of J. J. Stowe, deceased." On ADMINISTRATORS-SALE OF REALTY - REPCRCHAS- the presentation of this petition the probate ERS-MORTGAGE.

court made an order to show cause why the 1. The statute provides that, if the person- land should not be sold to pay the debts of alty fail to pay the debts of the deceased, "his

the deceased, in the usual form. Thereafter executor or administrator shall present a petition," etc. C. presented a petition, describing

the court made an order which begins with himself as “one of the administrators.” The this recital: “Now, at this day come Clarorder of sale recited, “Now, at this day comes C. ence Buell and E. B. Stowe, administrators and E., administrators," and directed them to sell the land. C. made report that he had

of said estate." Then follows a finding that sold it, and the sale was approved, "the admin- the order to show cause had been duly pubistrators” being ordered to make a deed to the lished, and an order that the "administrators purchasers, which they did. Held, that there was no irregularity available for collateral at

sell the lands at private or public sale." tack.

Thereafter Clarence Buell, as administrator, 2. Purchasers of land at administrators' made report that he had sold the section sale agreed with the administrators to resell at

now in question to James S. Martin and Wilany time within a year for the same price with interest, and on receipt of such amount made a

liam L. French, at private sale, for $3,000, deed to the administrators. The repurchase

it having been appraised at $3,800. This was reported to the court, which, debts being report was approved on the 9th January, still unpaid, ordered the sale of this and other land. The administrators sold, and gave their

1877. The order of approval contains this warranty deed to one who had notice of their

recital: "Now comes C. Buell, one of said trust. It appeared that the whole transaction administrators of said J. J. Stowe, and subhad been for the benefit of the estate, and that mits to the court his report of sale," etc. the full price received was accountd for. Held, This order of approval directs “the adminthat the heirs should not be allowed to redeem from the grantee after 15 years.

istrators" to execute a deed to the purchas3. When, after petition of the administra.

The deed bears the same date, is in tors, and order to show cause, land is ordered

due form, and is signed by the administra. sold to pay debts, and the administrators afterwards repurchase it for the estate, a second

tor and the administratrix. Our statute proorder to sell it need not be founded on an order vides that, if the personal estate shall be into show cause.

sufficient to pay the debts of the deceased. 4. When administrators, finding that the

“his executor or administrator shall present court will not authorize them to borrow money to pay debts, obtain an order to sell land, and

a petition to the probate court," praying for in selling it take from the vendees an agree the sale of real estate. It has been held unment to resell within a year for the same der a like statute that, where there are two price with interest, the transaction does not constitute a mortgage.

or more administrators, all should join in

the petition for a license to sell, and that a Appeal from circuit court, Audrain county;

license granted to one executor or adminisE. M. Hughes, Judge.

trator is invalid, and this for the reason that Petition in ejectment and to redeem land

the powers of administrators are joint. by Henry Stowe and others against Martha

Hannum v. Day, 105 Mass. 34. Other courts Banks and others. Judgment for defend

have asserted a different rule. Melms v. ants. Plaintiffs appeal. Affirmed.

Pfister, 59 Wis. 186, 18 N. W. 255; Jackson J. G. Trimble, for appellants. George v. Robinson, 4 Wend. 436. Regularly all of Robertson, for respondents.

the administrators or executors should ap

ply for the order, but in this case both apBLACK, C. J. The petition contains two peared in the probate court, and made proof causes of action. The first is an action of of the order to show cause, and the order to ejectment to recover possession of section sell is joint, and both joined in executing 12, township 50, range 7, in Audrain county, the deed. The most that can be said is that and the second is a suit in equity to redeem the proceedings are irregular, and we have the same land. The three plaintiffs are the no hesitancy in saying the sale is valid in a heirs at law of Julius J. Stowe, and the de- collateral proceeding like this. It may be fendants are the widow and heirs of Thomas doubted whether the objection would be


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