Wherry v. Hale

Henry, J. This is a suit to set aside certain conveyances of real estate made by A. "W. Ridings to Hale in trust for the receiver of the Eirst National Bank of Warrensburg, on the ground that they were without considera [23] tion, and made with, the intent to hinder, delay and defraud creditors. Plaintiff, prior to the institution of this suit, had sued Ridings in attachment, under which the lands in controversy were levied upon. He obtained a judgment in that suit. The deeds from RidiAgs were executed and recorded, except one, before the levy of the attachment, and that deed was not recorded until after. The defendant denied the fraud, and alleged that Ridings was largely indebted to the bank, at and prior to the date of the conveyances made by him ; that of said lands the bank was the real owner of a portion, and Ridings held them in trust for the bank, and conveyed them to the bank in execution of the trust and the balance to secure his indebtedness to the bank. The evidence was that the lands were all held by Ridings under deeds which expressed no trust; that he stated repeatedly that he owned the lands and the Marlatt property, which the defendant alleges he held as trustee for the bank. This land was what is known as the Sharp and Emery lands. The cashier of the bank testified that Ridings for the bank purchased the above named property under a deed of. trust given to secure notes which had been assigned to the bank. This was his understanding. Ridings paid nothing for it. The conveyance was so taken for convenience, and because attorneys advised that it was better on account of provisions of the National Banking Law, which they thought would give the bank trouble. It was the understanding of Glen. Cockrell and J. J. Cockrell that Ridings held the land for the bank, and in October, 1878, Ridings executed a writing under seal, never recorded however, declaring that he held the land for the bank» Lee W. Jack, assistant cashier of the bank, testified that the Marlatt property and the Emery farm were held by Ridings for the bank; that the attorney’s receipts for the notes which were secured by the lands, were carried in the bank books as past due papers. On the other hand the bank never made any statement showing that directly or [24] indirectly it held any land. Its public statements of assets and liabilities, made by the bank, contained no mention of land. On the evidence the circuit court found for defendants and rendered a judgment from which this appeal is taken. We have failed to discover any evidence to prove that Ridings’ purpose in making the conveyances was to defraud his creditors. There is not a scintilla to show any participation by the bank in any fraud, even if Ridings intended it. He was indebted to the bank in the sum of $82,638.59. He was reputed to be wealthy; and Q-en. Cockrell testifies that he would, if called upon, have sworn that he was worth $50,000 over and above all liabilities. Plaintiff testifies that he lent him the money for which he sued, “on the faith that he owned this and other property.” He does not say or intimate that he would not have done so, if he had known that he did not own this property, which constituted but a small portion of his reputed wealth. 1. National Banks .«sto'tóf trusts!real The circuit court, no doubt, found that there was no fraud in the transaction between Ridings and Hale or the bank, but that Ridings held the Sharp and Emery land and the Marlatt property in trust for the bank. The repeated declarations of Ridings that be owned the lands were consistent with the reasons assigned by the bank for having him hold the lands in his own name. It would have defeated the object they had in that arrangement if it had been proclaimed that he held the lands otherwise than as the deeds expressed. This was not an arrangement made to impose upon any one, but one of convenience. Ridings paid nothing for the land, and m fact, as the testimony shows, held it for the bank, and all the evidence which seems to conflict with that view of the .case, are Ridings’ declarations that it was his, prompted no doubt, by a desire to withhold from the public the fact that the bank owned any lands. Holding for the bank, the conveyance of the lands to its trustee for the receiver, [25] was but the execution of a trust reposed in him, which a -court of equity would have compelled had he refused. Payne v. Twyman, 68 Mo. 339. There was nothing in the transaction violative of the .National Banking Act, nor is there any provision of that 2.-: - — . law which would have prevented the bank from taking a deed to the property in its own name. That act authorizes such banks to hold and convey such real estate as they shall purchase at sales under judgments, decrees and mortgages held by such associations or to secure debts due to such associations. The Sharp-Emery land and the Marlatt property were sold under deeds of "trust given to secure notes assigned to the bank by the holders thereof. . But, if it had been otherwise, in the case of the Union _National Bank v. Matthews, 98 U. S. 621, it was decided by 3 ,__._. the Supreme Court of the United States that ultra vires. a breach of that section of the act cannot he taken advantage of by the person dealing with the bank, but only by the government. Certainly the plaintiff in this case, who was no party to the transaction, cannot impeach the transaction in question as violative of the National Banking Law. No actual fraud having been proved to affect the conveyances, the right of Ridings to prefer one bona fide creditor to another cannot be questioned, and on that ground "the conveyances of the property other than the Sharp and Emery land are beyond question. They were made and recorded before plaintiff’s attachment was levied, and that question which has been raised as to the conveyance of the Sharp Emery lands does not arise with respect to the other ■property. The attachment was levied after the execution of all the deeds in question, but before the deed conveying the Sharp-Emery land was recorded. The attachment only held Ridings’ interest in the land. The conveyances made by him were not of his interest in the laud. They simply conveyed to the bank whatin equity [26] belonged to tbe bank before they were executed, and all fraud out of tbe case, there can be no question that the title of the bank was good as against creditors of Ridings. The judgment is affirmed.