13 S.W. 82 (Mo. 1890), Benne v. Schnecko

Citation:13 S.W. 82, 100 Mo. 250
Opinion Judge:Sherwood, J.
Party Name:Benne, Appellant, v. Schnecko et al
Attorney:J. W. McElhinney for appellant. M. F. Taylor and R. L. McLaran for respondents.
Judge Panel:Sherwood, J. Barclay, J., dissents.
Case Date:February 24, 1890
Court:Supreme Court of Missouri
 
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Page 82

13 S.W. 82 (Mo. 1890)

100 Mo. 250

Benne, Appellant,

v.

Schnecko et al

Supreme Court of Missouri

February 24, 1890

Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards, Judge.

Reversed and remanded.

J. W. McElhinney for appellant.

(1) The deed to Mrs. Schnecko's trustee was fraudulent, because there was actual fraud. Bump on Fraud. Conv., pp. 31, 56, 306, 311; Besson v. Eveland, 26 N.J.Eq. 468; Humes v. Scruggs, 94 U.S. 22. Under pretense of paying a debt, the law will not permit a debtor to assign more property than is reasonably sufficient for that purpose, to the prejudice of creditors. Kuykendall v. McDonald, 15 Mo. 416, 420; Potter v. McDowell, 31 Mo. 62, 75; McVeagh v. Baxter, 82 Mo. 518; Robinson v. Stewart, 10 N.Y. 189, 195. And such a conveyance, when the grantor is indebted, is evidence of an intention to defraud. Butler v. Stoddard, 7 Paige, 163, 165; Bullett v. Worthington, 3 Md. Ch. 99. (2) But if there were no intentions to defraud the conveyance was voluntary and void as against an existing creditor. Terry v. Wilson, 63 Mo. 493; Bump, 307, 311. It cannot be presumed that the money obtained from the lots sold in Memphis was the wife's separate estate. Sloan v. Terry, 78 Mo. 623; Tillman v. Tillman, 50 Mo. 40. Voluntary transfers as against existing debts are constructively fraudulent whether fraud was intended or not. Potter v. McDowell, 31 Mo. 62, 69; Lionberger v. Baker, 88 Mo. 447, 453; White v. McPheeters, 75 Mo. 286, 294; Patten v. Casey, 57 Mo. 118; Bohannon v. Combs, 79 Mo. 305, 312. And, even if any of this money appropriated by the husband were a good consideration, the transfer would be voluntary to the extent of the excess of the property conveyed over the amount of the consideration, and to that extent void. Bump, Fraud. Conv., p. 294; Bullett v. Worthington, 3 Md. Ch. 99; Herschfeldt v. George, 6 Mich. 456; Allen v. Marchand, 78 Ky. 105. (3) The purchase at the sheriff's sale was likewise fraudulent and void. It was in furtherance of the original fraudulent scheme. Bump on Fraud. Conv., pp. 261, 263; Dallam v. Renshaw, 26 Mo. 533. The creditor has the right to proceed to set aside the fraudulent conveyance before sale under execution so that he or the purchaser may know what is sold. Bobb v. Woodward, 50 Mo. 95; Lionberger v. Baker, 88 Mo. 447; Zoll v. Soper, 75 Mo. 460; Dunnica v. McCoy, 24 Mo. 167. (4) The sureties on the payment of the judgment had a right to take an assignment to a third party as their trustee to retain the lien. Brandt on Sureties, sec. 272; Hanner v. Douglas, 4 Jones (N. C.) Eq. 262; Copas v. Middleton, 1 Turn. & Russ. 224; Fernold v. Bank, 44 Mo. 336; Berthold v. Berthold, 46 Mo. 557; Bispham's Equity, sec. 366. (5) The trustee could properly bring the suit in his own name. Rogers v. Gosnell, 51 Mo. 466; Wright v. Tinsley, 30 Mo. 389; R. S. 1879, sec. 3463. Besides defect in the parties could only be taken by demurrer, or answer. Rogers v. Tucker, 94 Mo. 346; Pike v. Martindale, 91 Mo. 268; St. Louis v. Anthony, 73 Mo. 431; Thompson v. Railroad, 80 Mo. 521.

M. F. Taylor and R. L. McLaran for respondents.

(1) Contracts or agreements between husband and wife, in regard to the disposition of...

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