Growney v. Lowe

VALLIANT, J. — This is a suit in equity to set aside two deeds to an undivided one-sixth interest in 240 acres of land in Nodaway county, on the ground that they were without consideration, and made to hinder and delay the plaintiff in the collection of a debt that the grantor in the first deed owed to the plaintiff. According to the petition the plaintiff in April, 1894, obtained a judgment in a justice’s court for $48.50' against Joseph Lowe, a brother of the defendants. Joseph at the time was insolvent and nothing could be made by execution, so the judgment remained unsatisfied; in 1901 he became the owner by inheritance from his father of an undivided one-sixth of the land in question; on November 6-, 1906, plaintiff began proceedings in the justice’s court to revive the judgment, which proceedings went to the circuit court on appeal, where the judgment was revived March 6, 1907; exe — 693 — cution then issued on the judgment, which was levied on Joseph’s interest in the land, and at a sale by the sheriff plaintiff became the purchaser of that interest and received the sheriff’s deed for the same. After the institution of the revivor proceedings, and after notice thereof had been duly served on Joseph, but before the return day of the writ, to-wit, on the 19th day of November, 1906, Joseph executed a quitclaim deed to his one-sixth interest in the land to the defendant James Lowe, his brother, the consideration expressed in the deed being one dollar, but it was without consideration; that deed was placed on record November 26,1906, and three days thereafter James executed a quitclaim deed, which was also duly recorded, to the same interest, to his two sisters, who are also defendants; that deed was also without consideration, and both deeds were made to hinder, delay and defraud the plaintiff in the collection of his judgment. The prayer of the petition was that the deeds he cancelled. The defendants answered by general denial. At the trial plaintiff introduced evidence to the following effect: The record showing that he began the proceedings in the justice’s court to revive the judgment, November 6th, and the return day of the scire facias was November 27, 1906; also the judgment on the circuit court reviving the judgment of the justice’s court; the records showing the two quitclaim deeds to defendants; the sheriff’s deed to himself, showing that the land was struck off to him for the sum of ten dollars, which wa,s the hig'hest bid. In his own behalf plaintiff testified that at the sheriff’s sale one of the attorneys for the defendants announced that Joseph had no interest in the land, and if any one should buy the land at that sale he would buy only a lawsuit. The sheriff’s sale was on the 22d of June, 1907. On cross-examination of the plaintiff it came out that he had not put the sheriff’s deed on record, that he had paid the sheriff only five dollars of the amount of his bid and — 694 — the sheriff had withheld the deed until the rest of the money was paid, but that on the day before the trial the plaintiff had asked the sheriff to give him possession of the deed to use at the trial and the sheriff had complied with the request; we infer from the plaintiff’s testimony and that of the sheriff that the transaction was not understood by them as a delivery of the deed, but that it would be returned to the sheriff after use at the trial and retained until the balance of the purchase money was paid. On the part of defendants the testimony tended to show as follows: The 240-acre farm had belonged to the father of the Lowes, he bought it in 1878. and moved on it with his family, consisting of his wife and six children, of whom Joseph was the eldest son. The father was a locomotive engineer and was engaged in that work in Pennsylvania, 'where he spent the most of his time until he became too. old to work, then he came home where he'lived until 1901, when he died intestate. During his absence in Pennsylvania and after his return the farm was cultivated and managed by his wife, the mother of defendants, with their assistance, until her death in 1883, and after that by the defendants. About 1879 Joseph left the farm and thereafter took no part in its operation or management, but his mother during her lifetime and the defendants after her death advanced to Joseph out of moneys derived from operating the farm from time to time, at first for his education, and afterwards when he was of age for his' business ventures, until these andvancements amounted to about $2800. After the death of the father these children who were then all of age got together and agreed that as there were no debts against the estate there should be no administration, and that as Joseph had already received, in the way of the advancements above mentioned, as much or more than his interest i-n the estate, he would relinquish his title to his brothers and sisters, then living on the farm, who were — 695 — the defendants and a brother who has since died. And a like agreement was also made in reference to the interest of a sister who was living in the east and who had likewise received as much as her share was worth. Bnt this agreement was never reduced to writing, nor deeds made until the deeds that are now assailed. Joseph all this time was a traveling salesman with his home in Omaha. In November, 1906, Joseph made a visit to Nodaway county, and while there was served with the scire facias sued out by plaintiff to revive his judgment. He returned to Omaha, and on November 19, 1906, defendant James Lowe went to Omaha and obtained from Joseph the quitclaim deed of that date, and on his return home he executed the other quitclaim deed conveying the same interest to his sisters. On this evidence the chancellor found for the defendants and dismissed the plaintiff’s bill; from that judgment the plaintiff appealed. I. The plaintiff’s claim is not such as to especially appeal to a court of equity for relief. His judgment was more than ten years old when he began his procéeding to revive it. If the revivor had been contested it is questionable if the plaintiff could have sue-ceeded. But as there was a judgment of revivor and no appeal, that is the end of it. The plaintiff failed in his proof to show title in himself. The sheriff’s deed was never delivered to him in the sense of the legal delivery of a deed. It was given into his possession only for the purpose of using it as evidence in the trial of this case, and to be returned to the sheriff on his demand unless the purchase money should in the meantime be paid. A delivery of a document to take effect as a deed must be with the understanding on the part of both grantor and grantee that it is the consummation of the transaction; the one must give it with the unequivocal intention of parting with the title conveyed and the other must receive it — 696 — with the intention of' taking such title. [McNear v. Williamson, 166 Mo. 358, l. c. 367.] As this was a sale to satisfy the plaintiff’s own judgment, he might have had the right to have the purchase money over and above the costs in the case credited on his execution, but we do not know how that account stood as the plaintiff’s evidence did not go into that matter. Both the sheriff and the plaintiff understood that the latter was to pay the amount of his bid before the delivery of the deed, and that was not done. Plaintiff in his brief says that even if his title was not proven he is entitled as a judgment creditor to the relief prayed. But that is not the theory of the plaintiff’s bill. II. We have no doubt-but that the defendants were aroused to a sense of danger of losing the interest that Joseph had agreed to give them in the estate of his father, in consideration 'of the advances he had received, by the movement of the plaintiff to have his judgment revived, and that it was to secure that interest before the plaintiff could revive his. judgment that induced James to go to Omaha and get the deed of date November 19, 1906, and that the deed he made to his sisters on the 23d following was hastened by the same cause, but if their only object was to protect their own interest they are not chargeable with fraud even if fraud could be charged against Joseph. If their purpose was only the selfish one of securing- themselves, and not of aiding Joseph in putting his property beyond the reach of the plaintiff, they are not to blame. An insolvent debtor is allowed to prefer a creditor even if his object is to prevent another creditor from collecting his debt, and the preferred creditor, although he may know the fraudulent purpose of his debtor, is not chargeable with fraud if his only motive is securing his own debt. [Alberger v. White, 117 Mo. 363; Crothers v. Busch, 153 Mo. 606.] Whether we treat the advances that were made to Joseph after he became — 697 — of age as debts he owed the estate of his father or consider them- as the motive that induced him after his father’s death to agree with his brothers and sisters to relinquish to them his interest in the estate, the effect is the same as constituting a consideration for the deeds assailed. Appellant contends that this defense was not pleaded in the defendant’s answer, which was a general denial only. The petition states that these deeds were executed without consideration and for the purpose of defrauding the plaintiff in the collection of his debt, the general denial puts those alleged facts in issue; defendants had a right to prove if they could that those statements in the petition were not true. Appellant contends that the advances to Joseph cannot be considered as debts by him owing to the estate of his father, because they were not made by the father, but by the mother while she lived, and the defendants after her death. The evidence showed that the advances came from the product of the farm, which was the property of the father and which was by him entrusted to the mother while she lived and the defendants after her death. 'Whether the. advances created a technical debt in favor of the father or not, they were made to Joseph out of the property that descended to the father’s heirs at his death and they amounted to as much or more than Joseph’s share in the estate and, if the defendant’s testimony is true, they agreed shortly after the father’s death that in consideration of those advancements Joseph would relinquish his interest in the estate to the defendants. Whether we consider the moneys so advanced- as constituting a debt due the estate or advances on his share or as debts due to the defendants, or in whatsoever light they be considered, they constituted a valuable consideration for the deeds in question. The chancellor had the correct view of the case. The judgment is affirmed. All concur.