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Dalton v. Barron.

v. Robards, 15 Mo. 459; Curd v. Lackland, 49 Mo. 454; Ames v. Gilmore, 59 Mo. 549; Ross v. Crusinger, 7 Mo. 259; 20 Cyc. 441; Knoop v. Kelsey, 121 Mo. 642; Assn. v. Steimke, 68 Mo. App. 52. (d) The petition charges that the sale to Barron of the property by Mollie Dunky was made secretly and was not advertised in the usual manner. All the facts concerning this transaction were specifically plead in the petition. Such secrecy or undue haste in the sale of property is a badge of fraud. Brewing Assn. v. Steimke, 68 Mo. App. 52; 20 Cyc. 447, 448. (e) The transfer of all or nearly all of a debtor's property, especialy when he is insolvent, or greatly embarrassed financially, is a badge of fraud. Ringtold v. Wagoner, 14 Ark. 69; Benne v. Schenecke, 100 Mo. 250; Grocery Co. v. May, 78 Mo. App. 323; 20 Cyc. 449; Bank of Hayti v. McElwain, 219 S. W. 75. (f) There is another badge of fraud alleged against the defendant Barron, and that is in one of the cases, the petition alleges that Barron had this deed made to William N. Barron and James J. Barron, when in truth and in fact there was no such a person as James J. Barron, but on the other hand, that he was a fictitious person. Unusual instances of this kind attending a transaction are a badge of fraud. (g) It is charged that Mollie Dunky made the deed in question with the fraudulent intent to cheat, hinder and delay her creditors, and that the defendant Barron took and accepted said deed with a knowledge of her intent, and that the intention on his part to aid and assist her in carrying out her fraudulent design. This makes the deed in question fraudulent and void as against creditors. Stewart v. Authorweite, 141 Mo. 562; Garesche v. McDonald, 103 Mo. 1; Stone v. Spencer, 77 Mo. 356; Shelley v. Boothe, 73 Mo. 74; Johnson v. Sullivan, 23 Mo. 474; Kurtz v. Troll, 86 Mo. App. 649; Christian v. Smith, 85 Mo. App. 117; Mercantile Co. v. Troll, 79 Mo. App. 558; Rubber Co. v. Bunn, 78 Mo. App. 55; Sellers v. Bailey, 29 Mo. App. 174; Clark v. Finn, 12 Mo. App. 583; Findley v. Findley, 93 Mo. 493.

Dalton v. Barron.

J. F. Woody and Arnot L. Sheppard for respondent.

(1) Fraud must concur with damages to be actionable. Constructive or actual fraud without damages will not support a creditor's bill." Therefore, Mollie Dunky's purpose in executing these deeds and Barron's purpose in purchasing said property,' are matters with which plaintiff has no concern unless he was damaged thereby. Johnson v. U. Rys., 247 Mo. 326; Thompson v. Newell, 118 Mo. App. 405; Stacey' v. Robinson, 168 S. W. 264; Vlates v. Catsigianis, 202 S. W. 441. (2) Before resorting to equity, a creditor must exhaust his remedies at law. Colman v. Hagey, 252 Mo. 102; Merry v. Fremon, 44 Mo. 521; Mullen v. Hewitt, 103 Mo. 650; Mellier v. Bartlett, 106 Mo. 390, 391; Davidson v. Dockery, 179 Mo. 173; Humphrey v. Milling Co., 98 Mo. 552, 553; Brown v. McKown, 265 Mo. 320; Gill v. Newhouse, 178 S. W. 499; Littick v. Means, 195 S. W. 729; State ex. rel. Taafe v. Goggin, 191 Mo. 482; Steele v. Reid, 223 S. W. 885. (3) Where the judgment creditor has a legal remedy against others jointly bound with the grantor, he must first exhaust that remedy against the co-obligors, before bringing a bill in equity to set aisde a deed made by one of the joint debtors. Eiler v. Lacy, 137 Ind. 436; Stark v. Lamb, 167 Ind. 645; Mfg. Co. v. Lee, 33 Ind. App. 38; Riddick v. Parr, 11 Iowa, 733; Lovejoy v. Chapin, 115 N. Y. S. 949; Billhoefer v. Heubach, 15 Abb. Pr. 143; Field v. Chapman, 13 Abb. Pr. 326; Slatter v. Carroll, 2 Sandf. Ch. 580; Voorhees v. Howard, 4 Keyes 383; Reed v. Wheaton, 4 Paige, 633; Child v. Bruce, 4 Paige, 316; Burne v. Kunzmann, 19 Atl. (N. J.) 667; Randolph v. Daly, 16 N. J. Eq. 313; Wales v. Lawrence, 36 N. J. Eq. 207; Boice v. Conover, 54 N. J. Eq. 541; Lupton v. Lupton, 3 Cal. 120; 5 Ency. Pl. and Pr., 463, 495; 12 R. C. L. 637. (4) The assignee of a judgment creditor occupies identically the same position with respect to the judgment as his assignor, and takes no greater rights by reason of his purchase than were possessed by him from whom he purchased. Machinery Co. v. Ram

Dalton v. Barron.

lose, 210 Mo. 653, 654; Lionberger v. Baker, 14 Mo. App. 357; Archer v. Ins. Co., 43 Mo. 442; Bidwell v. Ins. Co., 40 Mo. 42; Bank v. Ruffin, 190 Mo. App. 135; Bobb v. Taylor, 56 Mo. 313; Hill v. McPherson, 15 Mo. 204; Calhoun v. Albin, 48 Mo. 304; Weaver v. Gray, 37 Ind. App. 35; Safe Dep. & Safe Co. v. Adams, 113 N. E. 277; 5 C. J. 978, 979; 37 Cyc. 380.

JAMES T. BLAIR, J.-Appellant is the assignee of a judgment against Mollie Dunky and the WrightDalton-Bell-Anchor Store Company and instituted this suit to set aside a conveyance which the petition alleges was made by Mrs. Dunky to her co-defendants for the purpose of hindering, delaying and defrauding creditors. A demurrer to the petition was filed and sustained. Appellant refused to plead further; judgment was rendered accordingly, and the case is here by appeal.

The petition alleges, in substance, that respondent William N. Barron is a lawyer, abstractor and real estate dealer and is familiar with titles, records and values of real estate in Butler County and particularly with reference to the parcel in question, which is described; that June 10, 1901, Mollie Dunky, then Mollie Knight, represented to The Wright-Dalton-Bell-Anchor Store Company that she had good right to lease to it a lot in Poplar Bluff, and that, "deceived thereby, the Store Company accepted from her a lease of the property in question and other property for a term of over sixteen years at an agreed rental of forty dollars per month;" that Mollie Knight, now Dunky, covenanted in the lease that she had good right, etc., and thereby became liable to the Store Company for any damages it might sustain in case of breach; that in reliance upon the warranties in the lease, the Store Company entered into possession and expended large sums in improving the lot, whereof respondents Barron had full knowledge; that in 1903 George Orchard commenced an action in ejectment against the Store Company for the lot in question, to recover possession and for damages and rents and pro

Dalton v. Barron.

fits; that in realization of her liability to the Store Company in case Orchard succeeded in his suit, Mrs. Dunky applied to be permitted to come in and defend in that suit on the ground that she was the landlord of the Store Company; that leave was given her and she answered; that the Orchard case was tried, judgment was rendered for defendants, and Orchard appealed; that in 1909 the judgment was reversed and the cause remanded for retrial; that William N. Barron had full knowledge of the facts and of the opinion (225 Mo. 414), which appellant asks to have adopted as a part of the petition in this case; that the cause was retried and again resulted in a judgment for defendants, which, on appeal, was again (264 Mo. 554) reversed and the cause remanded; that of this opinion and the facts William N. Barron was fully cognizant; that they "are hereby adopted and asked to be taken and considered as a part of this petition," etc.; that the liability of Mollie Dunky and the Store Company was fully settled and fixed by the decisions referred to, and that the sole issue left for determination was the amount which Orchard was entitled to recover; that upon the return of the case after the second reversal, amendments suggested in the opinion were made and the cause was tried and a judgment was rendered for $7,477.17 and $78.60 monthly rental until restoration of possession, and for costs; that defendants in that case then appealed; that to prevent collection of the judgment pending the appeal, the Store Company gave an appeal bond in the sum of $15,000, and that William N. Barron, respondent in this case, was a surety thereon; that to secure Barron and other sureties against loss by reason of their suretyship, the Store Company executed and delivered to a bank, "of which said Barron is a large stockholder, director and dominating spirit," its note for $10,000, with interest at two per cent per annum, and to secure payment thereof delivered to the bank collateral of the value of $16,962.97, "and that said Barron thus became a paid and secured surety on said bond with a full knowledge of all the facts here

Dalton v. Barron.

inbefore pleaded;" that the Supreme Court, in April, 1917, affirmed the judgment in the Orchard case on the third appeal (197 S. W. 42; decided June 1, 1917; motion to transfer to Banc denied July 14, 1917); that on July 18, 1917, appellant, G. W. Dalton, purchased the judgment and it was assigned to him; that the recovery of the judgment referred to breached the covenants of the lease Mollie Dunky had made to the Store Company, and that she thereby became "morally, legally and equitably bound" to pay the judgment and protect the Store Company, which became liable to Orchard through no fault of its own, but through the misconduct and misrepresentation of Mollie Dunky, of all of which respondents in this case were advised; that while Orchard's suit was pending and undisposed of and after the liability of Mollie Dunky had become fixed "to her knowledge and the knowledge of the defendants herein," on October 20, 1915, two days before the third trial was to begin, Mollie Dunky with intent to defraud her creditors, and particularly the plaintiffs and her co-defendant, the Store Company, in the suit referred to, conveyed the property involved by a deed in which William N. and James J. Barron were named as grantees, for a recited consideration of $2500; that this deed was executed by Mollie Dunky and her husband in Pittsburg, Pennsylvania, on the day named, and filed for record in Butler County, Missouri, on October 23, 1915; that William N. and James J. Barron had full knowledge of all the facts pleaded herein and of the fraudulent intent of Mollie Dunky, and accepted the deed with knowledge and with intent to aid and abet her in defrauding her creditors in the manner stated; that William N. Barron had represented Mollie Dunky, "as attorney, at certain stages of said litigation between the said Orchard and the said Knight, now Dunky, and the said Store Company;" that the consideration was not paid at the time of the sale, and that James J. Barron is either a fictitious person, as appellant believes, or is a non-resident of Missouri, and, in any event, paid no consideration for the deed; that if in fact

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