Perkins v. Meighan

BURGESS, J. — This is a suit in equity to have set aside a warranty deed from defendant Meighan to his codefendant Mrs. Lizzie D. Nunn, dated on the fourth day of Dec. 1893, for an undivided one-half of a tract of land in Greene county, and to have the title thereto vested in plaintiff. Some time prior to the fourth day of October, 1891, the defendants entered into a verbal agreement by the terms of which Mrs. Nunn was to furnish the money to purchase eighty acres of land thereafter to be sold at administrator’s sale in said county, and if purchased under this arrangement it was again to be sold, and after reimbursing her with the amount of the purchase money, interest, taxes and cost, whatever balance there was, if any, was to be divided equally between them. The land was sold at an administrator’s sale on the fourth day of October, 1891, when Meighan became the purchaser at the sum of $400, and received the administrator’s deed therefor, by which the land was conveyed to him. The purchase money was furnished by Mrs. Nunn. On Oct. 14, 1891, Meighan conveyed to Mrs. Nunn, an undivided half interest in the land, and.on the fourth day of December, 1893, he conveyed the other undivided half interest to her. It is this last deed which is sought to be set aside upon the alleged ground that it was made without considera [620] tion, and in fraud of the creditors of Mcig'lian. No consideration passed for tbe deed. On December 5, 1893, one day after Meighan bad executed tbe last deed, plaintiff obtained judgment in tbe circuit court of Greene county against bim upon wbicb an execution was duly issued, levied upon, and all tbe interest of Meigban in tbe land in question sold, at wbicb sale plaintiff became tbe purchaser of tbe land and received tbe sheriff’s deed therefor. Tbe court found for tbe plaintiff, and that tbe property was originally purchased jointly by Meigban and Mrs. Nunn. That Mrs. Nunn bad furnished tbe purchase money. That Perkins was entitled to Meigban’s part, an undivided one-bal £ interest after Mrs. Nunn bad been reimbursed with $400 and interest, and decreed a sale, and out of tbe proceeds of such sale after tbe payment of costs and tbe payment to Mrs. Nunn of tbe $400 and interest thereon, tbe balance should be divided equally between Perkins and Mrs. Nunn. After unsuccessful motion by Mrs. Nunn for a new trial she appeals. Tbe facts disclosed by tbe record in this case do not we think justify tbe judgment and decree of the trial court, and for these reasons: In tbe first place, according to tbe testimony of Mrs. Nunn, Meigban never had any interest in tbe land. He never paid a dollar of tbe purchase money; she so' stated in so many words, and her statements were not in any manner contradicted. It is true that she testified, that Meigban came to her bouse and told her that be knew where a piece of property could be bought in if be could raise tbe money, that be could make some money out of it, that be asked her if she thought she could raise tbe money, and that she told bim she thought she could. That be then said if she could raise tbe money, after tbe expenses were all paid, tbe interest, taxes and all that, they could sell it and divide tbe profits; but there is nothing in these statements or in tbe evidence wbicb will justify tbe conclusion, that be was to own one half interest [621] in tbe land, especially in tbe face of tbe facts that she furnished all of the purchase money. The fact that he purchased the land and took a deed thereto in his own name, and recently thereafter deeded to her an undivided one-half, and shortly before the institution of this suit the other, does not overcome the positive testimony of Mrs. Nunn that he had no interest in the land. Besides she testified that she did not know why he took the deed in his own name, and there was no evidence tending to show that it was by her consent. The evidence we think clearly shows that Meighan had no interest in the land; that he was only to have one-half of the profits arising from its sale after deducting the purchase money, interest, taxes and costs; and having no interest in the land, nothing passed to plaintiff by reason of his purchase and sheriff’s deed. In the second place, even if Meighan owned an undivided half interest in the land, and plaintiff acquired it at a sheriff’s sale, he would first be compelled to have the deed from Meighan to Mrs. Nunn set aside, before he could recover in ejectment, and there is no count in ejectment in the petition. The most that plaintiff was entitled to under the petition, even if entitled to any relief at all, was to have the deed set aside because voluntary and fraudulent as against creditors. But upon no view of the case was the decree rendered warranted by the pleadings and the evidence. The judgment is reversed. Gantt, P. J., and Sherwood, J., concur.