Halstead v. Mustion

GANTT, J. This is a suit in equity to have the defendant, Jane A. Mustion, declared a trustee for her husband, W. D. Mustion, as to certain lands in Howell county in this State, alleged to have been purchased by the husband with his own money and conveyed to the wife with intent to hinder, delay and defraud the creditors of her said husband, and to decree that the title to the same passed to plaintiff by virtue of an execution sale of said lands under a judgment of the circuit court of Howell county against her said husband, and a sheriff’s deed to plaintiff by the sheriff in pursuance of said sale. The answer was a general denial. On the part of plaintiff the evidence consisted of the record of a judgment of the circuit court of Howell county in favor of Stillman Sessions against W. D. Mustion and P. P. Dobozy, at the November term, 1888, of said court, for the sum of $567.35, together with the costs of suit, which judg [492] ment was founded upon a promissory note for $500 dated January 15, 1887, and bearing interest at tbe rate of ten per cent per annum. Execution issued on this judgment, and a return of nulla bona on April 6,1889. On November 7,1893, Sessions duly assigned this judgment on the margin of the judgment to John Halstead for value received. Afterwards, Halstead brought suit on this judgment returnable to the October term, 1894, of the circuit court of Howell county. The action was against W. D. Mustion and P. P. Dobozy. The sheriff’s return on the summons was in these words: “Executed the within writ in the county of Howell on the twenty-ninth day of September; A. D. 1894, by delivering a copy of the summons and petition to Pone Mustion and summons to P. P. Dobozy.” The suit was subsequently dismissed as to Dobozy. Afterwards, at the November term, 1894, judgment by default and for want of an answer was rendered against defendant W. D. Mustion, the record reciting that “it appeared to the satisfaction of the court that defendant had been served with process from this court more than fifteen days before the first day of this term of this court and failing to appear or plead to this cause, makes default,” thereupon judgment was rendered against him for $751.60 and costs and execution awarded therefor. Execution issued and at the June term, 1895, the sheriff, after due notice, sold the lands in suit to John Hal-stead and executed and delivered to him a sheriff’s deed which is in due form, and recorded in the recorder’s office of Howell county in book 50, pages 358 and 359. And thereafter this suit in equity was brought on August 17, 1895, returnable to the October term, 1895, of said Howell Circuit Court. Plaintiff introduced the files showing the pleadings, writs and service and entries of the judgments above set out. He also introduced evidence that defendant Jane Mustion was the wife of W. D. Mustion and had been since about the year 1860. He also offered in evidence that W. D. Mustion was [493] insolvent, and then read in evidence a warranty deed from William L. Owings and wife to Jane Mustion to the land in suit acknowledged March 1, 1894, and recorded the same day. This was all the evidence on part of plaintiff and defendant introduced no evidence and submitted the case to the court as upon a demurrer to the evidence, and the court thereupon rendered judgment for defendant and after ineffectual motions for new trial and in arrest plaintiff appealed to this court. Since the filing of the transcript in this court, plaintiff moved this court for leave to the ex-sheriff of Howell county to amend his return on the summons in the ease of Halstead v. Mustion and Dobozy, which was granted, and thereupon the said sheriff, E. L. Herrin, made his amended return on the said writ of summons whereby it appears that said summons w’as duly served on said W. D. Mustion, and that Pone Mustion, by which name said defendant was served on the twenty-ninth of September, 1894, is one and the same person with W. D. Mustion. I. The respondent insists that the circuit court properly dismissed the bill for the reason that there is no evidence in the record to show that Pone Mustion and W. D. Mustion are one and the same person and that the judgment against W. D. Mustion on service had on Pone Mustion is absolutely void. If the court based its judgment on this view it was in error. Independently of the amendment which we have allowed to be made by the sheriff who served the writ, pending the appeal in this court, which shows that Pone Mustion and W. D. Mustion are one and the same person, we have the finding of the circuit court that the defendant, W. D. Mustion, had been duly served with process fifteen days before the first day of the term of the court to which the summons was returnable. Now, while it is the settled law in this State that a recital in an entry of judgment that the defendant had been duly served with process may be overthrown by other parts of the record of equal dignity and importing equal verity (Cloud [494] v. Pierce City, 86 Mo. 357), the question of jurisdiction must be decided by the whole record, and accordingly in Cloud v. Pierce City, the statement of Judge Lewis in Rumfelt v. O’Brien, 57 Mo. 569, “that nothing is here to show that the several fragments exhibited in evidence constituted the whole record of the Union Bank case,” was expressly held not to conflict with what was said in the Cloud case, and so it was again ruled in Adams v. Cowles, 95 Mo. 501. In this case, while plaintiffs introduced certain files and entries in the case of Halstead v. Mustion, no effort was made to show that these documents constituted the whole record. Moreover, the record introduced shows service upon Pone Mustion, non constat, but he was W. D. Mustion by a different name, and for aught that appears to the contrary the circuit court might have heard testimony to prove that Pone Mustion was but another name for the defendant, W. D. Mustion, as the fact now appears by the amended return of the officer. We do not think the finding of the court that.W. D. Mustion was duly served was rebuttéd or that the judgment should be held void even if the return had not been amended, but the amendment removes all doubt on the subject and the judgment was valid. II. Can the court’s decree be sustained on other grounds ? The case made was this. Judgments against the husband, W. E. Mustion. Nulla bona returns. Proof of insolvency, and a deed during coverture to the wife and sale of the lands under judgment and execution against the husband. No evidence of any kind was offered by the defendant to show she had purchased the lands in suit with her own means. In the absence of any pleading or proof that she paid for this land out of her own means it is presumed in law that this property thus acquired during coverture was purchased and paid for with the money of her husband. [Patton v. Bragg, 113 Mo. 601; Sloan v. Torry, 78 Mo. 625; Seitz [495] v. Mitchell, 94 U. S. 580; Weil v. Simmons, 66 Mo. 620; Hoffman v. Nolte, 127 Mo. 120.] The presumption being that the land was bought with the insolvent husband’s money, the deed as to plaintiff, who was an existing and prior creditor, was fraudulent in law. [Patton v. Bragg, supra; Jordan v. Buschmeyer, 97 Mo. 94.] If, then, the conveyance was fraudulent in law it necessarily follows that it was the property of the husband, W. D. Mustion, and subject to sale for his debts and the judgment of plaintiff against him. [Miller v. Leeper, 120 Mo. 466; Garrett v. Wagner, 125 Mo. 450.] Now, while this court is disposed to defer to the judgments of the circuit court in cases where evidence is to be weighed and the credibility of witnesses is to be determined, in this case there is no room for conceding to the trial court any advantage over this court. The whole record is documentary except as to the proof of coverture when the deed was made to Mrs. Mustion, and the insolvency of her husband, two facts that stand conceded. But one conclusion ean be reached under the well-settled presumptions of law, and that is that the land was purchased with the husband’s money and the deed taken to the wife to defraud his creditors. It follows that the sheriff’s deed conveyed the equitable title of the land to plaintiff, and Mrs. Mustion holds the legal title in trust for him and is entitled to a decree as prayed. The judgment of the circuit court is reversed and remanded with directions to award a new trial and proceed in accordance with the view's herein expressed. All concur.