ANNETTE J. McCOLLUM, Appellant, v. GEORGE A. CRAIN, Respondent.
St. Louis Court of Appeals,
March 31, 1903.
1. Fraudulent Conveyances: HINDER AND DELAY CREDITOR: ACTION FOR TORT WITHIN THE STATUTE. The conveyances made by the husband of plaintiff for the use and benefit of her and their children, were without consideration, and constituted a conveyance of all his property, and were therefore fraudulent and void as to Ms creditors; and the suit for malicious prosecution pending against him at the time of making such conveyances was a claim within the statute of frau'ds, and as to it said conveyances were fraudulent and void, no matter what may have been the intention of the grantor therein.
2. -: -: -. The fact that the suit was an action ex delicto made no difference, as such suits are within the statute.
Appeal from Cape Girardeau Circuit Court. — Now. Henry C. Riley, Judge.
Affirmed.
STATEMENT.
On June 3, 1901, Callie G. Boughton recovered, in the Cape Girardeau Court of Common Pleas, a judgment against Jesse W. McCollum for $600. An execution was issued on this judgment and delivered to the sheriff of Stoddard county who, by direction of plaintiff and her attorney, levied upon the following lots in the city of Dexter, in the said county, as the property of' Jesse McCollum, to-wit: All of lots 14, 15, 16 and 17,. and seventy feet off of the north end of lots 14 and 15, and thirty feet off of the north end of lots 16 and 17, and ninety feet off of the north end of lots 1 and 2, all in block 21 in the city of Dexter. Also lots 3, 4, 5, 6 and 7, block 4, and lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and *52312, block 5; and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,13 and 14 in block 6, in McCollum’s addition to the city of' Dexter.
After the levy was made the lots were duly advertised by the sheriff: for sale. Before the day of sale, plaintiff sued out a temporary writ of injunction against the sheriff, restraining the sale of said lots. Plaintiff claimed to be the owner in fee of all of said lots and alleged that the sale under the execution would cast a cloud over her title and do her irreparable injury.
The answer alleged that the suit in which the judgment was rendered was commenced in June, 1895, and was continuously pending until the final judgment was rendered; that when the suit was commenced Jesse Mc-Collum was the owner in fee of all the lots levied upon, but that pending the suit he made a voluntary conveyance thereof to his wife (the plaintiff) and two of his minor children, with the intent to hinder and delay plaintiff in the collection of her demand.
The reply denied generally the affirmative allegations in the answer.
On the trial the following admissions were made.
“It is admitted by counsel that Jesse W. McCollum was the original owner of the land and property in controversy, and that he is the common source of title. •
‘ ‘ It is admitted that plaintiff was the wife of J. W. McCollum at all times mentioned and that the two children mentioned in the deeds are their children.
“It is admitted that the judgment upon which the execution was issued was rendered June 3, 1901.
“It is admitted that the suit of Callie G. Boughton against Jesse W. McCollum, in which judgment was rendered in the Cape Girardeau Common Pleas Court on the 3d day of June, 1901, as stated in plaintiff’s petition, was brought in the year 1895, in the circuit court of Stoddard county; that that suit was continuously pending in that court until the change of venue to the common pleas court of Cape Girardeau county; that it *524continued to be pending- in that court until the judgment of June 3, 1901, was rendered.”
To show title in her, plaintiff read in evidence the following deeds:
First. A deed dated February 19, 1899, from the trustees of Dexter Hall Company (of which Jesse Mc-Collum was one) to plaintiff, to lots 16 and 17, in block 16, original town of Dexter, duly acknowledged, and recorded February 19, 1889.
Second. Deed from Jesse W. McCollum and wife, to Russell A. Sisler, dated December 2, 1898, conveying ninety feet off of the north end of lots 1 and 2, block 21, original town of Dexter, duly acknowledged and recorded.
Third. Deed from Jesse W. McCollum and A. J. McCollum, his wife, dated March 23,1898, to Russell A. Sisler, conveying “all of lots 14, 15, 16 and 17, block 16, of the city of Dexter, seventy feet off of the north end of lots 14 and 15, block 21, of the city of Dexter, lots 3, 4, 5, 6 and 7, block 4, of McCollum’s addition to the city of Dexter, thirty feet off of the north end of lots 16 and 17, block 21, city of Dexter, lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, block 5, McCollum’s addition to the city of Dexter, and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,13 and 14, McCollum’s addition to the city of Dexter, together with a stock of drugs now situate in the building on the north end of lots 16 and 17, block 21, of the city of. Dexter,” duly acknowledged and recorded.
Fourth. Deed dated December 2, 1898, from Russell A. Sisler and wife, to A. J. McCollum, Harry Mc-Collum and Fred McCollum, conveying ninety feet off of the north end of lots 1 and 2, block 21, original town of Dexter, duly acknowledged and recorded.
Fifth. Deed dated April 20,1898, from Russell A. Sisler and Georgia Sisler, his wife, to A. J. McCollum, Harry McCollum and Freddie R. McCollum, conveying “all of lots 14, 15, 16 and 17, block 16, of the city of Dexter, seventy feet off of the north end of lots 14 and *52515, block 21, of the city of Dexter, lots 3, 4, 5, 6 and 7, block 4, of McCollum’s addition to tbe city of Dexter, thirty feet off of the north end of lots 16 and 17, block 21, city of Dexter, lots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12, block 5, McCollum’s addition to the city of of Dexter, and lots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14, block 6, McCollum’s addition to the city of Dexter, together with one stock of drugs now situate in the building on the north end of lots 16 and 17, and one saloon stock situated on lots 14 and 15 in the city of Dexter,” duly acknowledged and recorded.
In respect to the giving of these deeds, Jesse W. McCollum testified as follows:
“My name is Jesse W. McCollum, aged sixty-nine, live at Dexter, Missouri, was formerly in the drug and saloon business, but have been retired since early in the year 1898. I deeded the property in suit to my wife and children on account of my advanced age. I did not know how long I would live. I have two boys, both quite young, and in the event of my death I wanted them and my wife to have the property in suit. I wanted to arrange the matter that when I did pass away it would be unnecessary to appoint an administrator or incur any expense on that account. I did not owe a dollar to any person in the world and there were no judgments of any kind against me when I transferred the property; as I said, I was old and knew I could not live a great while at best, and while I could legally do so I wanted to put the title to this property in my wife and children. My wife has had absolute control and management of the property since the transfer. One of my boys is now twelve years of age and the other ten. I made the transfer in perfect good faith and without any intention of defrauding creditors. I had no creditors. Since then I have had nothing to do with the management or control of the property; have not been responsible for its obligations nor shared in its profits.”
Russell A. Sisler testified that the consideration for *526the deeds was love and affection and that they were made to carry ont the wishes of J esse W. McCollnm.
On April 9,1900, Jesse McColhnn recovered a judgment against Thomas J. Ulen and E. J. Malone, in the Mississippi Circuit Court, for $1,770, which judgment he, on the fifteenth day of June, 1901, assigned to his wife, A. J. McCollum.
The court dissolved the injunction and dismissed plaintiff’s bill, from which judgment she duly appealed.
Mosley & Wammack for appellant.
G. L. Keaton for respondent.
(1) In the language of the Supreme Court: “It is the settled law of Missouri that land fraudulently conveyed may be sold on execution of a creditor as though no conveyance had ever been made, and the purchaser, upon proof of fraud, is entitled to a decree vesting the title in him.” R. S. 1899, sec. 2499; Slatterley v. Jones, 96 Mo. 216; Jacobs v. Smith, 89 Mo. 673; Lion-berger v. Baker, 88 Mo. 447. And in such case the fraudulent grantee will be decreed trustee for the purchaser. Woodard v. Mastín, 106 Mo. 324; Kuntz v. Troll, 86 App. 649. (2) “The only answer to these questions is that the property was equally open to the suit of a creditor, whether in the hands of the fraudulent vendor or fraudulent vendee.” Lander v. Ziehr, 150 Mo. 403; Snyder v. Free, 114 Mo. 367. (3) Callie Gr. Boughton’s action against J. W. McCollum was for tort, hence, was a lawful action under our statute. R. S. 1899, sec.'3398; Bump on Fraudulent Conveyances (4 Ed.), sec. 503. “A demand arising from a tort is in force from the time of the commissi on of the wrong.” “A judgment is prima facie a claim only from the institution of a suit.” Yet “Evidence may be introduced to show that a judgment is founded upon a prior claim.” Bump on Fraudulent Convey-*527anees (4 Ed.), secs. 503, 506 and 507; Bine v. Penniston, 27 Mo. 272.