Johnson v. Mason
Missouri Court of Appeals
Appeal from Texas Comity Circuit Court — Hon. Wilson A. Taylor, Special Judge. (1) If there are no creditors there can be no fraudulent conveyance to defeat the rights of creditors. Respondent’s evidence most emphatically shows that they were only sureties, and a surety is not a creditor until he pays the debt or discharges the liability or is damnified. Hearne et al. v. Keath et al., 63 Mo. 84; Bauer v. Gray, 18 Mo. App. 170; McCormick v. Obanion, 168 Mo.
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Appeal from Texas Comity Circuit Court — Hon. Wilson A. Taylor, Special Judge. (1) If there are no creditors there can be no fraudulent conveyance to defeat the rights of creditors. Respondent’s evidence most emphatically shows that they were only sureties, and a surety is not a creditor until he pays the debt or discharges the liability or is damnified. Hearne et al. v. Keath et al., 63 Mo. 84; Bauer v. Gray, 18 Mo. App. 170; McCormick v. Obanion, 168 Mo. App. 607; Huse v. Ames,'104 Mo. 91. (2) None hut a creditor can attack a conveyance as being made to defraud creditors. Sec. 2881, R. S.…
1Concurrence
SEPARATE CONCURRING OPINION.
STURGIS, J.
I fully concur in the holding of the majority opinion that an attaching plaintiff on the trial of an interplea need not prove his indebtedness against defendant.
It is with some hesitation that I agree to the result reached in this case. The plaintiffs wrongfully assumed the burden of proof instead of letting the interpleader prove his title first. [Torreyson v. Turnbaugh, 105 Mo. App. 439, 443, 79 S. W. 1002, and cases, cited; Graham Paper Co. v. Crowther, 92 Mo. App. 273.] In doing so the plaintiffs assumed that the interpleader’s title was derived from…
2Cases cited8 opinions
- Holmes v. BraidwoodSupreme Court of Missouri · 1884
- Desberger v. HarringtonMissouri Court of Appeals · 1888
- Sammons v. O'NeillMissouri Court of Appeals · 1895
- Torreyson v. TurnbaughMissouri Court of Appeals · 1904
- National Bank of Commerce v. Brunswick Tobacco Works Co.Supreme Court of Missouri · 1900
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