Greffet v. Goessling , 81 Mo. App. 633 ( 1899 )

BIGGS, J.

This is an action for money had and received. The plaintiff as the assignee of the insolvent firm of Leesburg and Werner, claims that in equity and good conscience he is entitled to the amount of money received by the defendant in .the compromise of a certain case instituted by the latter 'against Catherine Werner and John Sparks.

The following is the substance of the facts stated in the petition, to wit: In September, 1894, Leesburg and Werner assigned their property to plaintiff for the benefit of their creditors. The defendant was a creditor of the firm. He had his claim allowed by the assignee. Thereafter he instituted a suit in equity to set aside a sale of certain personal property made by Leesburg and Werner to Oatherine Werner, and by her subsequently transferred to John Sparks. The sale was made a short time prior to the assignment. In that action it was claimed by defendant here that the conveyance of the property was without consideration, and that the sale was contrived to cheat and defraud the creditors of the firm. The plaintiff as assignee was made a def endant in the action, and Goessling expressed in the petition a willingness to share the results of the litigation with any creditors of the firm who might manifest an intention to assume with him the responsibilities of the law suit. Mrs. Werner and Sparks answered. The creditors did nothing. In 1897 the defendant accepted from Mrs. Werner or Sparks about $600, as a compromise, and thereupon the cause was dismissed. The plaintiff claims that in equity he is entitled to the money.

The circuit court sustained a demurrer to the petition, and the plaintiff having refused to plead further final judgment was entered on the demurrer, and the plaintiff has appealed.

Unquestionably the defendant had the right as the holder of an allowed demand against the firm to maintain an action to set aside the alleged fraudulent conveyance, and that he could do so either for his sole benefit, or for the benefit of other creditors holding like claims who might thereafter come in and take part in the prosecution of the suit. He adopted the latter course and presumably with the view of having the property turned over to plaintiff as assignee should the other creditors come in and the sale should be set aside, he made the plaintiff a party defendant in -the action, and by so doing the plaintiff now contends that the defendant created a trust iu his favor, and was bound to account to him -as assignee for whatever amount he realized from the litigation. We can not conceive how this position can he maintained. There was no warrant in law for making the plaintiff a defendant in the action to set aside the fraudulent transfer. He was neither a necessary, nor a proper party. If all of the creditors of the firm had come in and the sale had been set aside, the circuit court would have ordered 'the property sold for their benefit and the proceeds distributed directly to them. Under no circumstances could the property or the proceeds of the sale have become a part of the assigned assets. Therefore, there was no place for the plaintiff in -that litigation, and he can not now claim any benefit on account of it.

Aside from the legal question involved the equities of the case favor the respondent. The other creditors failed to come in or to manifest a willingness to divide-the cost of the litigation, which left the respondent free to make the best terms he could with his-adversaries.

The judgment of the circuit court will be affirmed.

All the judges -concur.