Whittelsey v. Brohammer

Scott, Judge, delivered the opinion of the court. This was an action brought by the plaintiff to recover the possession of a lot of ground in St. Louis, and to set aside certain deeds alleged to be fraudulent. Valentine Finck and others, as securities for Jacob Mueller, admi dstrator of the estate of Catharine Mueller, deceased, executed to the State of Missouri a bond in the penalty of thirteen thousand dollars, conditioned in pursuance to law. After the execution of the bond, and before a breach of the condition thereof, [107] Valentine Einck died, leaving as his heir at law Johanna Einck, to whom the lot in controversy descended. A breach of the condition of the bond being afterwards made, a suit was brought upon it in the name of the State of Missouri, to the use of A. Kehr, administrator de bonis non of Catharine Mueller, against the other securities, as well as the said Johanna Einck as the heir of the said Valentine Einck. There was a judgment by default taken against the said Johanna, which was afterwards made final. This was a general judgment for the damages assessed, and there was an award of execution for the damages. This judgment was afterwards reversed in this court and is reported in 26 Mo. 483. Pending the suit on the bond Johanna Einck conveyed the lot in dispute to Joseph Brohammer, who conveyed it in trust to Lorenz Brohammer for the benefit of a daughter of Johanna Einck. These deeds are alleged to be fraudulent, and to have been made without any consideration, and there is a prayer to have them set aside. On the judgment obtained against Johanna Einck as heir, the lot in controversy was sold under an execution to the plaintiff, who received a deed, therefor, which is the foundation of his title. There was no oral evidence in the case, and the court, rejecting all the instructions asked by both parties, rendered a judgment for the defendant. The suit, out of which this action has arisen, is the first instance that has fallen under our observation in which an action has been brought on the bond of the ancestor against his heir. Under the common law system of administering descendants’ estates, this was no uncommon thing. But our mode of administration is so different from that prevailing at the common law, that an action of debt on a bond against the heir can not be maintained, if at all, but under peculiar circumstances. The provisions in our code of laws, which seem to contemplate the existence of the right to maintain such an action, were taken through inadvertence from the laws of states whose system of administration conformed more nearly to the common law. These observations are [108] made, not with a view to ftrand any objection to the plaintiff’s title on the fact that an action was brought on the bond of the ancestor against his heir, and that the premises in controversy were sold under a judgment obtained in such action; but to show that the remedy adopted was an absolute one, and is entitled to no special favor of the courts, as there is no necessity for it, and as it is inapplicable to most cases that may arise. So little has this matter been in the mind of our legislators, that they have failed to adopt any of the English legislation in relation to it. The statute of the 3d and 4th of William and Mary has never been enacted in this state ; so that, in actions of this kind, we are left entirely for our guidance to the ancient common law. By that law, if the heir aliened in good faith before suit brought, the creditor could not subject the land aliened to the payment of his debt. Lord Coke says : “ If an action of debt be brought against the heir, and he alioneth, hanging the writ, yet shall the land, which he had at the time of the original purchase, be charged, for that the action was brought against the heir in respect of the land.” (Folio 102, b.) But wo conceive that this would depend on the nature of the judgment obtained against the heir. If the judgment was a special one against the land descended, an alienation of it pending the writ would not defeat the execution of the creditor. But where the judgment was a general one, such as was rendered in the action against the heir here, such judgment will not operate by way of relation to the original, but binds only in common cases from the time of the judgment given. (Gree v. Oliver, Carthews, 245-6.) There was something said about fraud in the conveyances made to those under whom the defendant claims. The petition alleged that the conveyances were made without any consideration, and with an intent to defraud the plaintiff. The defendant denied that the deeds were made with any such intent, and insisted that they were valid and operative against the plaintiff. The plaintiff offered no evidence in support of the allegations of his petition in relation to fraud [109] and the want of a consideration, but on the pleadings asked the court to declare that fraud and the want of consideration stood confessed. The answer, though not so formal nor so full as it might have been, was sufficient to let the plaintiff know that his allegations in relation to fraud were not admitted. There is nothing in the pleadings which shows that the answer was studiously evasive or that it was intended to be so. Standing as the answer did, it would have operated as a surprise to the defendant, after the evidence had been closed, for the court to have declared that it was no denial of the plaintiff’s allegations. If the plaintiff relied on the pleadings for proof, he ought to have called upon the court before the evidence was closed, that the defendant might have amended or introduced his proof. Surely his denial of the fraud was sufficient to let in proof that the deed was made in good faith and was valid. Affirmed. The other judges concur. [The plaintiff filed a motion for a rehearing on the ground that he was taken by surprise by the decision, inasmuch as it was the understanding of the counsel that the considerations mentioned in the deeds from Johanna Binck to Joseph Brohammer and from the latter to Lorenz Brohammer had never been paid, and that the charges of the petition in this matter were not specially denied in the answer because they could not be denied with truth, and that the answer was only designed to deny the fraudulent intent of the acts. The court, in overruling this motion, gave the following opinion:] Scott, Judge, delivered the opinion of the court. Even taking the matter as made by the petition for a re' hearing, that the consideration of the deed was the point in issue, yet we do not see that the case is helped. If the deed was voluntary, it does not follow that it was fraudulent in law. The judgment was a general one. It does not appear that the defendant was in embarrassed circumstances, or that he had not other property sufficient to satisfy the execution. None of these facts are stated in the case. When a party is endeavoring to obtain an estate worth not less than nine thousand dollars for the sum of two hundred [110] and eleven dollars, and makes a slip in liis proceedings, the cause of justice is not subserved in permitting him to mend his hold. Motion for rehearing overruled. The other judges concur.