Stivers v. Horne

62 Mo. 473

• Court: Supreme Court of Missouri
• Decided: May 15, 1876
• Status: Published

Opinion

Sherwood, Judge,

delivered the opinion of the court.

Plaintiff, who is a judgment creditor of defendant, John T. Horne, brought his suit against the latter and wife to set aside a conveyance made to the wife, on the ground that such conveyance was made to hinder, delay and defraud the creditors of Horne. The petition also prayed injunctive relief with regard to the rents and profits of the premises in dispute, then in possession of a tenant of the wife.

The defendants, Horne and wife, who were non-residents of the State, appeared by attorney and filed a demurrer. After-wards, the defendant, John P. Lewis, on his own application, was made party defendant, and filed a general denial of the material allegations of the petition, and claimed in his answer that he was a purchaser in good faith and without notice.

The temporary injunction called for, was denied; but upon a final hearing of the case on the merits, the decree went in favor of the plaintiff, he being a purchaser at execution sale of defendant Horne’s interest in the land in controversy.

I.

It is wholly unnecessary to discuss the evidence at length. Its careful perusal has satisfied us beyond doubt, that the con vey anee sought to be set aside was made in fraud of creditors, or else by a party largely indebted at the time, in greatly embarrassed circumstances, if not actually insolvent, when the conveyance in question was made. Our conclusion on this point, for these reasons, coincides with that of the .circuit court.

II.

■ It is, however, objected, that the record does not show that the demurrer was disposed of. Although there is no formal disposition of the demurrer, no judgment entered thereon, yet the bill of exceptions shows that the demurrer was overruled, and that a default was taken for failure to answer; and the defendants, ITorne and wife, seem, after having demurred, to have abandoned the cause, which was thereafter actively participated in by the defendant Lewis alone. There was no ground for demurrer to the petition; it made the usual allegations, and the demurrer was merely frivolous.

In consequence of this, the defendants, who demurred, cannot be said to have been prejudiced by the mere failure to take formal action on their demurrer, by an appropriate entry. Our statute of jeofails is applicable to, and cures, a defect of this sort.

III.

Another objection, equally futile, is, that the petition is faulty in not charging notice of the fraud, etc., on Lewis. The petition was not framed with the view of making him a party, but an issue as to notice was raised expressly by the answer and denied by the reply, and this accomplished all that could have been done by an amendment of the petition. (Wagn. Stat., 1031, et seq., §§ 5, 6, 19, 20 ; Id., 1067, § 33.) There is therefore no room for complaint on this score.

IY.

But Lewis was not a purchaser without notice. The evidence shows this very clearly. In addition to that, he held only by quit-claim deed (Ridgeway vs. Holliday, 59 Mo., 444); and that deed and the purchase, which it recites, were made months after plaintiff bought at execution sale.

Y.

This being an equity case, we shall not discuss the instruc- • tions given or refused, and as to the question of a homestead, in the premises in dispute, there was no evidence showing that Horne and wife had a homestead there at any time, and more especially at the time of the sale at which plaintiff acquired title. And even if there were evidence of this character, still it conld not avail anything, as it is shown that the debts, for which plaintiff’s judgment was rendered, accrued anterior to the acquisition of the land sued for. (Farra vs. Quigly, 57 Mo., 284.)

It results that the judgment of the lower must be affirmed. Judges Tories and Wagner absent. The other judges concur.