Burk v. Flurnoy

4 Mo. 116

Opinion

Opinion of the court was delivered by

McGirk J.

Footnotes

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Flournoy & Lammes, brought a bill in the circuit court of Clay county, against Burke and his infant children.

The bill charges that in June 1832 .certain tracts land were sold by the sheriff of Clay county on several executions issued from the clerk’s office of the circuit court of Clay county against Burke at the suit of several sons, among whom Flournoy was one, and that at the sale Amos Rees, Michael Arthur and David R. Atchi-son became the purchasers and that the.sheriffmade a deed to them for the land in due form of law.

' The bill farther alleges that afterwards on the 15th of September the purchasers made a deed of conveyance to the complainants for the lands which was in due form of law&c. •

The bill farther shews that at the time of the sale of the sheriff, Burke had no legal title to the land. But that fore that, Burke had bought the land of one Joshua Broyles for the consideration of four hundred dollars, The bill farther charges that Burke caused Broyles to make a deed of said land to his infant children with a view to defeat and defraud the above named creditors, that when Broyles made said deed, Burke was greatly indebted and in insolvent circumstances.

That he paid for the land out of his Burkes, own money. Then prays that the deed from Broyles to the children may be set aside, and that Broyles may convey the land to the defendants. . ■ '

Samuel Burke answers the bill, he admits that the land was purchased with his money, but says it was not done with a view to defraud creditors, but with a view to secure his wife and children in a permanent home: he admits at the time he made the purchase he was largely indebted, but not beyond his means to pay, if his creditors had been indulgent, as they promised to be, denies all m-teQt tQ commft fraud &C.

been made parties, Hold that b. & C. and D should have ’ were'obtained be-forea J P and transcripts filedm andraeciitions issued by the clerk Held that before anBxn. could be issued by the: clerk, that an sued by the J P and retumedjiulla ouuhTs^roTf l*1' decree could not he made against any of the defds. The judgments “¡íof satisfied™/^ levying on the 7 property of A and iufficifnf-S” m" must shew that A had no more goods &c.

The Guardian of the children denies all knowledge of the matter. The cause was set down for hearing, the complainants gave evidence of the execution and judgment &c.

I'he court decreed that the deed from Broyles was void. The court farther decreed that Broyles should convey the land to the complainants by a given time, and if that were not done then a commissioner should do it.

It is objected to this decree, first, that it is erroneous, in decreeing any thing against Broyles as he was no party to the suit. This objection is beyond doubt a good one, Broyles should have been a party; he is not bound by this decree. It is next objected that Rees, Atchison and Arthur should have been made parties. This objection is good also. The rule is that all parties in interest should be made parties to the suit. This is more apparent when we look to the deed of these persons made to the complainants; a question may arise on that deed whether they have conveyed any thing to the' complainants. Instead of a decree for the complainants, the bill should have been dismissed for want of proper parties, but without prejudice. A question was raised by the appellants wj^h regard to a portion of the evidence. It appears the^-jt^dgments on which these executions issued, were obtain edi before a justice of the peace, and that a transcript had Ffien filed with the Clerk of the circuit court, and that op this transcript the executions issued, act 0f ^hg mineral assembly authorises this to be done, but it requires that-before any execution can issue on the judgment thus filed in the clerk’s office an execu-^on shap have issued from the justice, and returned no goods to be found. /.

In. this case the only evidence of the facts were found on justices’ docket or transcript, which says an execution had issued, and that the constable returned not satisfied by levying on the property of Burke and making sotne —the return does not shew that the defendant Burke had no more goods &c. The law is express that no execution can go from the clerk’s office till a return of nulla bona is made to an execution issued the

There being no proof on this subject the decree could not be made against any of the defendants. As to the manner of making this proof, see the cause of Coons v. Munday 3rd vol. Mo. R. 373. . „

The decree of the circuit court is reversed, the cause is remanded for further proceedings and with leave to amend the bill.

Wash Judge, absent.