
    Perkins v. Meighan et al.; Nunn, Appellant.
    Division Two,
    February 7, 1899.
    Praudulent Conveyances: trusts: cotenanot: partnership. Meighan knew that a tract of land 'would be sold at an administrator’s sale, and believed that it could be purchased for much less than its actual value.. He agreed with Mrs. Nunn that if she would furnish the money, the land would be bought, then sold, she would be reimbursed for the purchase money, interest and costs, and the balance would be divided equally between them. Meighan bought the land, the title was taken in his name, but Mrs. Nunn paid the entire consideration, and he conveyed an undivided half interest therein to her. Later, by another deed he conveyed to her the other undivided half. This last deed was made just the day before plaintiff had obtained judgment against Meighan, under which his interest in the land was sold at sheriff’s execution, plaintiff being the purchaser. The suit was to set aside the deed to Mrs. Nunn and vest the title in plaintiff. The- court decreed sale of the property, the reimbursement of Mrs. Nunn, and that the residue should be equally divided between plaintiff and her. Seld, that Meighan had no interest in the land that could be sold; that it belonged absolutely to Mrs. Nunn and that the court's judgment decreeing its sale, etc., should be reversed.
    
      Appeal from Greene Circuit Court. — Hon. James T. . Neville, Judge.
    Reversed.
    C. W. Hamlin for appellant.
    (1) Tbe deed was made and delivered to Mrs. Nunn by Meigban, and recorded before judgment was obtained by Perkins against Meigban. Hence, tbe complete legal title was vested in Mrs. Nunn; and tbe deed will stand unless set aside for tbe causes alleged in tbe petition. Parker v. Bank, 97 Mo. 132; Caffee v. Smith, 101 Mo. 233. (2) Eraud may be inferred ; but this does not mean that it may be assumed. It can ionly be legitimately inferred from some tangible, responsible fact in proof. Funkhouser v. Lay, 78 Mo. 462; Ryan v. Young, 79 Mo. 30; Garesehe v. McDonald, 103 Mo. 11; Robinson v. Dryden, 118 Mo. 539. (3) The statute of fraudulent conveyances only applies to the fraudulent transfer of the estate and interest of the debtor in the property, and has no application to a conveyance made solely for the purpose of transmitting to the rightful owner property held in trust. De Berry v. Wheeler, 128 Mo. 84; Darling v. Potts, 118 Mo. 506. (4) A resulting trust is created by law, where the purchase money for real estate is paid by one and the legal title is conveyed to another. Kelly v. Johnson, 28 Mo. 249; Baumgartner v. Guessfield, 38 Mo. 23; Payne v. Twyman, 68 Mo. 339; Dozier v. Matson, 94 Mo. 333; Caffee v. Smith. 101 Mo. 233; Story’s Eq. Jur. [11 Ed.], sec. 1201. (5) A decree in equity must be founded upon facts consistent with and embracd within the pleadings. Newham v. Kenton, 79 Mo. 382; Ross v. Ross, 81 Mo. 87; Mason v. Black, 87 Mo. 346; Reed v. Bott, 100 Mo. 66.
    George Peeeerdine for respondent.
    (1) The court may grant any relief' consistent with the case made by the plaintiff and embraced within the issues. R. S. Mo., 1889, sec. 2216; Kerr v. Simmons, 82 Mo. 269. (2) The court is not confined to the prayer in granting relief, but may look to the whole petition and determine if the facts authorize any relief. Crosby v. Bank, 107 Mo. 436. (3) When the facts are sufficiently stated in the petition, the plaintiff may have such judgment as the facts stated entitle him to, although in the prayer of the petition he ask for a different relief. Miltenberger v. Morrison, 39 Mo. 71; McGlothlin v. Moore, 44 Mo. 350; Kneale v. Price, 21 Mo. App. 295; Northcraft v. Martin, 28 Mo. 469; Easley t. Prewitt, 37 Mo.366; Cliristal v. Oraig, 80 Mo. 367; Baker v. Eailroad, 34 Mo. App. 98; Saline Oo. v. Sappington, 64 Mo. 72. (4) A judgment when appealed from should not be disturbed on a technical point of pleading which does not appear to have been distinctively raised in the trial court, and which if so raised could have been obviated by an amendment. Leigh v. Ins. Go., 37 Mo. App. 542. The error complained of, if error at all, is an error in the record and could have been reached only by a motion in arrest of judgment (which was not filed in the case at bar). Ilart v. King, 24 Mo. App. 593; McCarty v. O’Bryan, 137 Mo. 584.
   BURGESS, J.

— This is a suit in equity to have set aside a warranty deed from defendant Meighan to his codefendant Mrs. Lizzie D. Nunn, dated on the fourth day of Dec. 1893, for an undivided one-half of a tract of land in Greene county, and to have the title thereto vested in plaintiff.

Some time prior to the fourth day of October, 1891, the defendants entered into a verbal agreement by the terms of which Mrs. Nunn was to furnish the money to purchase eighty acres of land thereafter to be sold at administrator’s sale in said county, and if purchased under this arrangement it was again to be sold, and after reimbursing her with the amount of the purchase money, interest, taxes and cost, whatever balance there was, if any, was to be divided equally between them.

The land was sold at an administrator’s sale on the fourth day of October, 1891, when Meighan became the purchaser at the sum of $400, and received the administrator’s deed therefor, by which the land was conveyed to him. The purchase money was furnished by Mrs. Nunn.

On Oct. 14, 1891, Meighan conveyed to Mrs. Nunn, an undivided half interest in the land, and.on the fourth day of December, 1893, he conveyed the other undivided half interest to her. It is this last deed which is sought to be set aside upon the alleged ground that it was made without consideration, and in fraud of the creditors of Mcig'lian. No consideration passed for tbe deed.

On December 5, 1893, one day after Meighan bad executed tbe last deed, plaintiff obtained judgment in tbe circuit court of Greene county against bim upon wbicb an execution was duly issued, levied upon, and all tbe interest of Meigban in tbe land in question sold, at wbicb sale plaintiff became tbe purchaser of tbe land and received tbe sheriff’s deed therefor.

Tbe court found for tbe plaintiff, and that tbe property was originally purchased jointly by Meigban and Mrs. Nunn. That Mrs. Nunn bad furnished tbe purchase money. That Perkins was entitled to Meigban’s part, an undivided one-bal £ interest after Mrs. Nunn bad been reimbursed with $400 and interest, and decreed a sale, and out of tbe proceeds of such sale after tbe payment of costs and tbe payment to Mrs. Nunn of tbe $400 and interest thereon, tbe balance should be divided equally between Perkins and Mrs. Nunn.

After unsuccessful motion by Mrs. Nunn for a new trial she appeals.

Tbe facts disclosed by tbe record in this case do not we think justify tbe judgment and decree of the trial court, and for these reasons: In tbe first place, according to tbe testimony of Mrs. Nunn, Meigban never had any interest in tbe land. He never paid a dollar of tbe purchase money; she so' stated in so many words, and her statements were not in any manner contradicted. It is true that she testified, that Meigban came to her bouse and told her that be knew where a piece of property could be bought in if be could raise tbe money, that be could make some money out of it, that be asked her if she thought she could raise tbe money, and that she told bim she thought she could. That be then said if she could raise tbe money, after tbe expenses were all paid, tbe interest, taxes and all that, they could sell it and divide tbe profits; but there is nothing in these statements or in tbe evidence wbicb will justify tbe conclusion, that be was to own one half interest in tbe land, especially in tbe face of tbe facts that she furnished all of the purchase money. The fact that he purchased the land and took a deed thereto in his own name, and recently thereafter deeded to her an undivided one-half, and shortly before the institution of this suit the other, does not overcome the positive testimony of Mrs. Nunn that he had no interest in the land. Besides she testified that she did not know why he took the deed in his own name, and there was no evidence tending to show that it was by her consent. The evidence we think clearly shows that Meighan had no interest in the land; that he was only to have one-half of the profits arising from its sale after deducting the purchase money, interest, taxes and costs; and having no interest in the land, nothing passed to plaintiff by reason of his purchase and sheriff’s deed.

In the second place, even if Meighan owned an undivided half interest in the land, and plaintiff acquired it at a sheriff’s sale, he would first be compelled to have the deed from Meighan to Mrs. Nunn set aside, before he could recover in ejectment, and there is no count in ejectment in the petition.

The most that plaintiff was entitled to under the petition, even if entitled to any relief at all, was to have the deed set aside because voluntary and fraudulent as against creditors. But upon no view of the case was the decree rendered warranted by the pleadings and the evidence.

The judgment is reversed.

Gantt, P. J., and Sherwood, J., concur.  