
    J. & W. McDOWELL vs. SHIELDS & BOLTON.
    •A decree of the circuit court which is warranted by the facts of the case will not be disturbed.
    APPEAL FROM ST. LOUIS CIRCUIT COURT.
    Shreve for appellant.
    The complainants insist they we entitled to a decree, 1st. Because Cassada’s judgment is older than the record of the deed. “The lien of a judgment will hold good against a prior unrecorded deed,” 1st Dana Ky. 168. Hill vs. Paul 8th Mo. Page 479, Reed. vs. Austin’s heirs 10th Mo. #. 722.
    
      Frothinghara et al vs. Stacker, 11th Mo. p. 77. This case is stronger than any of those cited, no deed but mere assignment before judgment recovered.
    2nd. Complainants contend the transfer or assignment by Warfield to Shields was and is void so far as they are concerned—said assignment never having been acknowledged as required by the statute. Rev. stat. sect. 16 p. 221. Nor was said assignment recorded, Rev. stat. sec. 40, 41, 42, page 226.
    It is also insisted under the evidence, that McDowell’s j'udgment vs. Warfield is good although obtained subsequent to tbe record of Shields deed. Because said sale by Waifield to Shields, through Bolton, was fraudulent and void, as to prior creditors, sec. 2, Rev. S. p .525— a debtor may prefer one creditor to another, Sibley vs. Hood 3rd Mo. 230, Bell vs. Thompson 3rd Mo. 84.
    Hudson for appellee.
    Warfield never had any title to the land in question or any interest therein which could be sold under execution, consequently complainants acquired no title under the purchase at Sheriff’s sale. The holder of a title bond has no interest in the land which can be sold on execution until the full payment of the purchase money be made according to the conditions contained in the bond, 4 Mo. Rep. 62; 10 Ib. 398 17 John R. 351 7 Smedes Marshall 119 Ib. 651, 13 Peters 294,18 Wend. R. 236.
    2nd. Warfield had delivered possession of the land in question to Shields, and assigned the bond set out in the answers long before any judgment had been rendered against Warfield, and before any execution issued against him. At the time of the rendition of the judgments offered in evidence, Warfield had no right, title, claim or interest in the land in question, nor did heat any subsequent period, have any interest therein either legal or equitable. See answers and the bond proven on the trial and given in evidence on behalf of defendants. The said Warfield had no interest whatever in the ¡and when the judgment was rendered.
    3rd. The answers deny all fraud and collusion on the part of defendants—the answer of Shields shows the payment to Warfield of the full value of the land in question. Bolton denies in express terms the charges of fraud &c., in the bill, and denies that the deed to Shields was made for the purposes charged by complainants. These answers are conclusive unless contradicted by two witnesses or one credible witness with corroborating circumstances.
    4th. Tbe whole evidence and proofs were left to the court, no instructions were asked by the complainants, the court setting as a jury, found upon a full investigation of the testimony and proofs, in favor of the defendants, and dismissed the bill. There was no error in any matter of law of which the plaintiffs can complain, as the court was not called on to declare the law. As to the evidence offered at the trial, the court below was the proper judge of the weight to which it was entitled, and the court will not set aside or disturb the finding of the circuit court unless such finding was clearly against the evidence. This court will not interfere under the circumstances of the case, 9 Mo. Reps. 48, 49, 50, Ib. 291, 379.
    5th. The alleged newly discovered evidence, even if it had been given on the hearing of the bill, as set out in the affidavit of McCullough, would have had no influence upon the decision of the cause. The affidavit of L. M.'Shreve, one of the solicitors for plaintiffs, does not show that complainants were ignorant of the existence of the supposed testimony before the trial.
   Judge Napton

delivered the opinion of the court.

This v/as a bill in chancery brought by the judgment creditors of one Warfield to set aside certain conveyances alleged to have been fraudulent as against the complainants.

The complainants, who were creditors of Warfield, had purchased his interest in a tract of land under executions upon two judgments ;—one obtained by themselves against Warfield on the 18th March 1847 and the other obtained by one Cassada on the 13th Oct. 1845.

In the year 1835 Warfield had purchased this tract of land from Bolton (one of the defendants,) and gone into possession, but received no conveyance—a bond for a title upon the payment of the purchase money was given to him. On the 18th Feb. 1845, Warfield assigned this title bond to Shields (the other defendant) who took possession on the 1st March 1845. There is some diversity of- testimony as to the fact, whether Warfield had paid all the purchase money or not. On the 27th April 1846, Bolton conveyed by deed to Shields, the latter having paid off whatever was due from Warfield. This deed was recorded 2nd May 1846.

The bill seeks the interposition of this court upon two grounds. The first is based upon the hypothesis that the transactions above stated were bona fide, and assumes, that under the decisions of this court, the complainants have the better title, because the deed from Bolton to Shields was not recorded until after the judgment of Cassada.

The doctrine in Hill vs. Paul 8 Mo. R. and Reed vs. Austin 9 Mo. R. we consider inapplicable. The judgments of the complainants were not given against the vendor Bolton, but against Warfield, who at the date of the judgments, had no interest either equitable or legal in the land. He never had any legal title, and he had transfered his equitable title to Shields. So that, taking the transaction to have been an honest one, Warfield had nothing upon which the judgement could operate.

The bill however charges that this assignment of Warfield to Shields and the conveyance from Bolton to Shields, were fraudulent in fact and designed to protect the lands in question from the creditors of Warfield. Upon this point there was some testimony, but the circuit court decreed against the complainant. An examination of the testimony preserved in the bill of exceptions, and copied in the statement of the case, will show that there "was no satisfactory proof that Shields* conduct or motives in the transaction were at all questionable; Shields was a creditor of War-field, and had a right to secure himself, and his diligence in procuring the title from Bolton before the judgments against Warfield, could form no just ground for imputing fraud. We shall shall therefore confirm the decree of the circuit court.  