Gust v. Hoppe
| Citation | 100 S.W. 34,201 Mo. 293 |
| Parties | WILLIAM GUST, Appellant, v. AMELIA HOPPE |
| Decision Date | 22 February 1907 |
| Court | United States State Supreme Court of Missouri |
Appeal from Gasconade Circuit Court. -- Hon. William A. Davidson Judge.
Reversed and remanded (with directions).
Robert Walker for appellant.
Plaintiff brings this suit as purchaser of real property sold under general execution against a judgment debtor. The law is well settled in our State that such purchaser may bring suit to set aside fraudulent conveyance made of such property by the judgment debtor, prior to the execution sale; and that he occupies as advantageous a position as would the judgment creditor, when proceeding to set aside the debtor's conveyance on the ground of fraud. Bradshaw v Halpin, 180 Mo. 666; Woodward v. Mastin, 106 Mo. 324; Rinehart v. Long, 95 Mo. 396; Ryland v Callison, 54 Mo. 513. It is undisputed that Hermine Gust, the judgment debtor, collected and converted all her property into cash money, and that, to use her own words, she "had the money in her pocket," and refused to pay the judgment debt, recovered against her on account of moneys not belonging to her, and kept by her as against the owner, a deaf sister. The presumption of fraud on her part is very violent, if not absolute, in the light of her own words in court. 14 Am. and Eng. Ency. Law, 522; Renney v. Williams, 89 Mo. 139; Leavitt v. La Force, 71 Mo. 353; Bump, Fraud. Conv., secs. 47, 612; Powell v. Canady, 95 Mo.App. 713; Dunivan v. Dunivan, 157 Mo. 157.
Breuer & Hensley for respondent.
(1) Deference is always accorded the findings and judgment of the trial court, and especially where the witnesses were present and testified orally. Arn v. Arn, 81 Mo.App. 133; Short v. Taylor, 137 Mo. 517; Dunivan v. Dunivan, 157 Mo. 157; Cox v. Cox, 91 Mo. 71. (2) Fraud and collusion must be proved, and will not be assumed by the court by mere obscurity or apparent fraud, and if a transaction consists as well with honest and fair dealing as with a fraudulent purpose, it should be referred to the better motive. Briant v. Jackson, 99 Mo. 596; Robinson v. Dryden, 118 Mo. 534; New England Loan and T. Co. v. Browne, 177 Mo. 412; Bank v. Worthington, 145 Mo. 91. And in this case the facts as disclosed by the evidence show the transaction to be a fair and honest deal. (3) Courts of chancery place little reliance upon testimony proving loose conversations or statements, when used to overthrow a legal title. Cornet v. Bertelsmann, 61 Mo. 118; Fanning v. Doan, 139 Mo. 392. (4) The burden of proof is upon appellant to prove the charges in the petition that Hermine Gust conveyed said real estate with the intent to defraud, hinder and delay her creditor, Albertine Bode, and that respondent, Amelia Hoppe, not only knew of such fraudulent intent when she purchased said real estate, but participated therein, and that said conveyance was voluntary and without any consideration. Bank v. Worthington, 145 Mo. 91; Albert v. Besel, 88 Mo. 150; Wall v. Beedy, 161 Mo. 625; State ex rel. v. Hope, 102 Mo. 410.
Plaintiff purchased the real estate in question, which is a house and lot in the village of Morrison, Gasconade county, at a sheriff's sale under a general execution on a judgment in favor of Albertine Bode against Hermine Gust, and brings this suit in equity to set aside a deed to the same property executed by Hermine Gust to the defendant Amelia Hoppe, on the ground that the deed was without consideration and made for the purpose of hindering and defrauding Albertine Bode in the collection of her debt.
This is a family quarrel; William Gust the plaintiff, Charles Gust, Hermine Gust, Albertine Bode and Amelia Hoppe, the defendant, were brothers and sisters.
October 20, 1902, Albertine Bode brought suit against Hermine Gust, and on 13th December, 1902, obtained judgment for $ 825.30; execution on that judgment issued and under it the real estate in question was sold by the sheriff and purchased by the plaintiff, William Gust, May 11, 1903, for the sum of $ 500. That is the plaintiff's title.
November 6, 1902, while the above-mentioned suit was pending, Hermine Gust executed a deed conveying the property to Amelia Hoppe, the defendant, for the consideration expressed of $ 1,000. That is the defendant's title.
The evidence on both sides shows the following facts:
These are German people, well on in years, all being 60 years or over, of good common education and fair intelligence. Before the occurrence of the business transactions in controversy the plaintiff, William Gust, Albertine Bode and Hermine Gust lived together in this house which was the property of Hermine. While they were so living together William had in his possession a sum of money, something over $ 800, belonging to Albertine, which by her consent he passed to Hermine. Albertine is now dead and we have not her testimony in the record. There is a dispute between the parties as to whether this transaction was a loan of the $ 800 to Hermine to be repaid to Albertine, or was a payment to Hermine for her care and keeping of Albertine. It appears in the evidence that Albertine was deaf, but there is no proof that she was otherwise afflicted or incapable of taking care of herself. While they were thus living together a very hostile feeling grew up between them, that is, with William and Albertine on the one side, and Hermine on the other, the result of which was William and Albertine moved away and Albertine brought the suit above mentioned against Hermine to recover the $ 800 in dispute and, as already said, recovered judgment for the same. In her answer to that suit Hermine set up a counterclaim for $ 485.25, of which $ 435 was for board and nursing; the jury allowed her $ 68. The bitter feeling above mentioned was quite manifest on both sides in the taking of the testimony in this case. The feeling between Hermine, Charles and Amelia, the defendant, was friendly, and these latter two were witnesses for Hermine.
In addition to the above undisputed facts the testimony on the part of the plaintiff tended to prove as follows:
Hermine had loaned her brother Charles $ 1,000, of which Albertine's $ 800 above mentioned formed a part, and held his note for the same. In August, 1902, a few days after Albertine had moved away, Hermine called in this loan and Charles paid it to her. After the judgment in favor of Albertine had been rendered and an execution had been returned unsatisfied, Hermine was called into court under the terms of section 3227, Revised Statutes 1899, and examined touching her ability and means to pay the judgment and in such examination she testified that she had the money she had collected from Charles:
When Albertine was packing her chattels, in getting ready to move away from Hermine's house and go with William, the three sisters being present, some angry words passed between them on the subject of Albertine's money which Hermine had, and in the quarrel Amelia, the defendant, said to Albertine, "If you stay with us, you will get your money; but if you go with Bill you will get not one red cent."
Amelia was also heard on another occasion to say that Hermine had collected the money from Charles so that no one could touch it, and that she, Amelia, had bought the house so that Hermine would not have it in her name and the lawyers could not get it. Both Amelia and Hermine as witnesses denied that either ever made such a statement.
On the part of defendant the testimony tended to show as follows:
The quarrel between William and Hermine arose out of the fact that he contributed nothing to the support of the household and wanted her to keep him for nothing. While he was there she had to borrow money to get along, she borrowed $ 300 from her sister Amelia, and gave her her note for the same. According to Hermine's testimony the $ 300 note was given for borrowed money, but according to Amelia it was for vegetables, poultry, etc., furnished. After William left he threatened to burn the house down, and that fact and also because Hermine was old and afflicted with rheumatism and could not live alone in the house and also because she owed her sister Amelia $ 300 were the reasons that induced her to sell.
The contract to sell was in writing, dated August 25, 1902, at which time defendant paid $ 500 and surrendered to Hermine her note for $ 300, and she paid the remainder of the purchase money, $ 200, in October following; the deed was not executed until November 6th, because at the time defendant made the last payment Hermine was sick. After the purchase by defendant, her husband sold the house and premises in which they had formerly lived and they took up their abode in the house she purchased from Hermine, the house in question, and have lived there ever since, Hermine living with them. The property was not worth more than the price defendant paid for it. Defendant testified that she knew nothing of any purpose on the part of Hermine to defraud Albertine.
The chancellor found the issues...
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