Caffee v. Smith

Sherwood, J. This' is a proceeding in equity, brought to set aside, as fraudulent as against creditors,. a deed to real estate, situate in Jasper county, executed February 6, 1885, by R. R. Smith to his father, Sanford M. Smith. The facts' developed on the trial in the court below were substantially as follows: In June, 1882, the land in question was owned by R. R. Smith, he having acquired the same from his mother; said R. R. Smith, being desirous to move to town and engage in the practice of his profession, sold the land to his father, Sanford M. Smith, for seven hundred dollars, which he was to pay by buying a lot in Sarcoxie and building a house on it for his son, this defendant did, and had the lot conveyed to his son. By the terms of this agreement, the defendant was to and did in July, 1882, enter into full possession of said land and has ever since been in the open, notorious, peaceable, adverse, exclusive and continuous possession thereof, claiming and using the same as his own, etc. At the time the defendant and his son entered into the agreement to sell the land to the defendant, said R. R. Smith was out of debt, and there is no pretense that insolvency or fraudulent intent on the part of the defendant or his son, R. R. Smith, existed in June, 1882, at the time the contract of sale was made. In pursuance of this agreement the said R. R. Smith, by his deed dated February 6, 1885, conveyed this land to the defendant; he did not call on his son for a deed before, because he had confidence in him, and believed that he would comply with his agreement when called on. On the fifth of March, 1885, A. H. Caffee & Co. instituted an action in the Jasper circuit court, against [233] R. R. Smith on an account of goods sold him during the years 1883 and 1884, and in October following recovered judgment thereon for two hundred and sixty-nine dollars. An execution was issued on this judgment, and the land sold as the property of R. R. Smith and purchased by the plaintiff for twenty-five dollars. The defendant had no knowledge of the existence of A. H. Caffee & Co’s, debt until suit was brought on it. On the trial, the court after hearing the evidence in the cause found for the defendant and dismissed the bill. The defendant being placed in possession of the premises in question by R. R. Smith, his son, in accord- * anee with a valid parol agreement, made upon a valuable consideration, and at a time when R. R. Smith was not in debt, and having performed that agreement, he acquired such an equity in the premises as would have warranted specific performance against the son and in favor of the father. Waterman on Specific Perform;, secs. 270, 272, 274, 275, 276; Fry on Specific Perform-. 180, 181; 2 Story Eq. Jur. [13 Ed.] pp. 76-77. The fact that the son afterwards became indebted to plaintiff cuts no figure in the case, as the equity of the father became vested, and the subsequently acquired right of the creditor could not divest the equity of the father ; that was beyond the reach of the creditor, and the son, in making the deed to the father in 1885, only did without suit what a court of equity would have compelled with suit. This view is fully illustrated in Dozier v. Matson, 94 Mo. 328; Payne v. Twyman, 68 Mo. 339; Park v. Bank, 97 Mo. 130. Therefore, judgment ailnmeci. All concur.