Major v. Hill

13 Mo. 247

Opinion

BIRCH, J.

We perceive nothing in the record of this case sufficient to fix a fraudulent intention upon any of the parties to the conveyance of the 9th of April, 1842. As the law stands, a debtor has the right thus to discriminate amongst his creditors, and that is the utmost which is apparent upon the face of the conveyance, and from an analysis of all the testimony which was taken with a view to elucidate the transaction.

Under the circumstances presented, the delivery of the conveyance for record was substantially a delivery by A. to B. for the use of C. and is sanctioned by the earliest authorities. 8 Coke, 27 ; 1 Sliep. Touch. 58. It cannot, therefore, be regarded otherwise than as having pledged the property thereby transferred, and placed in the posession of one of the beneficiaries in the trust, to the uses designated, and that such an arrangement was valid unless disclaimed or disaffirmed within a reasonable period by some act of the mortgagor. That is so far from being pretended here, that the contrary impliedly appears in the seasonable (however invalid) arrangement they entered into with a view to discharge the prior incumbrances of the justices’ executions.(

Footnotes

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a)

The only question, therefore, upon which wc find ourselves in disagreement with the court below, has relation to the sum which it appears from the testimony was retained by Miller out of the proceeds of the sale of the property, on account of a judgment debt due to himself, but not included in the mortgage or otherwise carried to thé dignity of a lien, as the complainant's was, by execution. To this sum, or to whatever amount was ultimately realized from the sale of the mortgaged property, over and above the debts secured by the justices’ judgments and the mortgage deed, and not exceeding the debt remaining due to the complainant, it would seem that in virtue of his execution, and the continuous and open claim which he set up under it, he was equitably entitled. This, of course, presupposes that the arrangement and conduct of Miller, and of Hill imparts too much the appearance of unfairness, if not collusiveness, to the sale by the constable, to permit it to stand against the rights of meritorious third persons.

The Circuit Court erred in dismissing the bill of the complainant, instead of ascertaining the net excess of proceeds which came to the hands of Miller, who seems to have acted as a kind of agent or trustee under the deed, and decreeing the complainant, the payment of that sum, with interest, as so much upon his judgment against Haines. Its decree is therefore reversed, and one will be hero entered in conformity with the foregoing opinion.

(a) Groen v. Yarnell, 6 Mo. R. 326.