East St. Louis Ice & Cold Storage Co. v. Herman H.
| Citation | 142 S.W. 253,238 Mo. 685 |
| Parties | EAST ST. LOUIS ICE & COLD STORAGE COMPANY, COLUMBIA BREWING COMPANY and L. FRANK OTTOFY v. HERMAN H., alias HERMAN, KUHLMANN; LILLIAN, alias LILLIEAN, KUHLMANN, his wife; JOHN A. TORNHAGEN, ALBERT C. GEHNER, Trustee, and AUGUST GEHNER, Trustee; the KUHLMANNS, Appellants |
| Decision Date | 23 December 1911 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
Hiram N. Moore for appellants.
(1) The petition fails to state a cause of action and defendants' objection to the introduction of any testimony should have been sustained. Merry v. Fremon, 44 Mo. 521; Wilkinson v. Goodin, 71 Mo.App. 397; Rinehart v Long, 95 Mo. 396; Humphreys v. Milling Co., 98 Mo. 542; Implement Co. v. Jones, 143 Mo. 278; Burnham v. Boyd, 167 Mo. 185; Davidson v Dockery, 179 Mo. 693. (2) The conveyances from Ford and wife to Kuhlmann of the 18th of February, 1897, and from Kuhlmann and wife to Adolph Mast, of date the 24th day of May, 1898, were not legally proven and the so-called certified copies of the deeds were improperly admitted in evidence. If admissible in evidence at all they would have been so by virtue of a local, and special Act of the Legislature contained in the Session Acts of 1905, at page 152, and this act was not introduced in evidence. Kirby v. Railroad, 85 Mo.App. 345. (3) The evidence fails to show a transfer of the property by Kuhlmann with an intent to defraud his creditors, but even if such intent had been shown, the evidence utterly fails to show any guilty participation therein by defendant, Lillian Kuhlmann; or any knowledge on her part at the time from which such intent might be inferred.
John T. Fitzsimmons and L. Frank Ottofy for respondents.
(1) The decree subjecting the Madison street property and the Cass avenue property to the satisfaction of the judgments of plaintiffs against H. Kuhlmann was just and equitable and should stand. If Lillian Kuhlmann were permitted to retain these properties without payment of these judgments, a gross fraud upon her husband's creditors would receive the sanction of law. Johnson & Co. v. Christie, 79 Mo.App. 46; Wolfsberger v. Nort and Fritsch, 104 Mo.App. 261; Pomeroy on Equitable Remedies, supplementary to Pomeroy's Equity Jurisprudence, vol. 2, sec. 873, p. 1409. (2) Plaintiffs' petition states a cause of action and defendants' objection to the introduction of any testimony was properly overruled. Reed v. Bott 100 Mo. 62; Jordan v. Buschmeyer, 97 Mo. 94; Bliss on Code Pleading, sec. 211; Lyons v. Murray, 95 Mo. 23; Smith v. Sims, 77 Mo. 269; Nagel v. Railroad, 167 Mo. 89; Bank etc., v. Rohrer, 138 Mo. 369; Dorman v. Hall, 124 Mo.App. 5; Ennis, Admr. v. Padgett, 122 Mo.App. 539; Hoffman v. Gill, 102 Mo.App. 320; Pomeroy on Equitable Remedies, sec. 874, p. 1410. (3) Fraud on the part of Kuhlmann in causing the Madison street and Cass avenue property to be conveyed to his wife by the grantors thereof is conclusively proved. It was not necessary to allege or prove any fraud in fact on the part of his wife Lillian Kuhlmann. The conveyances to her were constructively fraudulent in the absence of a satisfactory showing to the contrary. Jordan v. Buschmeyer, 97 Mo. 94; Johnson & Co. v. Christie, 79 Mo.App. 46. (4) The regularity of the returns of the constable or of the sheriff on the executions is not in point, since no question of title to real estate, depending upon these returns, is in the case. The issuance of executions merely has bearing on the question whether judgment creditors have exhausted their legal remedies. Judgment creditors may be entitled to equitable relief without a showing that execution issued for equity does not require the doing of unnecessary things. In this case, defendant H. Kuhlmann testifies that he has not a cent, hence what use would an execution subserve. Langford v. Few, 146 Mo. 142; Littlefield v. Ramsey, 181 Mo. 619; Tittmann v. Thornton, 107 Mo. 510; Welch v. Mann, 193 Mo. 32.
On May 17, 1907, the Storage Company, the Brewing Company and Ottofy, three judgment creditors of Herman Kuhlmann, united in a creditors' bill, suing him and others in the circuit court of St. Louis, the general nature and object of which suit was to subject two tracts of ground in St. Louis to three judgments aggregating a few hundred dollars. The record title to said tracts was in the defendant Lillian, wife of Herman Kuhlmann. The bill alleges that Herman, paying the consideration, caused the title to be put in his wife by conveyances made with the intent to hinder, delay and defraud his creditors. At the hearing, nisi, a decree going for plaintiffs, the Kuhlmanns in due time and apt form appeal. The rights of the other defendants (respectively trustees in two deeds of trust in the nature of mortgages and beneficiaries therein) are not infringed by the decree. Accordingly they abide it.
To work a reversal appellants (1) assail the bill, (2) claim error at the trial in admitting certified copies of two deeds offered in evidence by plaintiffs, and (3) contend that the decree is for the wrong party on the merits.
Attending to the facts, the case made is this:
The first tract to be charged is the east half of a certain lot six, fronting twenty-five feet on the north side of Madison street in the city of St. Louis, more particularly described by metes and bounds in the bill. For convenience let us call it, passim, the Madison tract. This parcel stands incumbered of record by a deed of trust securring $ 1000 loaned the Kuhlmanns in 1904.
The second tract to be charged is three contiguous lots fronting one hundred feet on the south side of Cass avenue in said city, more particularly described by metes and bounds in the bill. For convenience let us call it, passim, the Cass tract. It stands incumbered of record by a deed of trust, of date April 15, 1905, securing an indebtedness at the time of the trial of $ 5,000 purchase money.
There is no dispute but that the value of the Cass tract is $ 7,700. The value of the Madison tract is somewhat dark. As near as we can make out it may be put at say $ 2,000 for the purposes of the case.
Kuhlmann's present wife took title to the Madison tract by a deed from one Adolph Mast, of date the 24th of May, 1898. She took title to the Cass tract on April 15, 1905, through a deed from one Becker. Both of these deeds were promptly spread of record. These two conveyances are the ones sought to be opened up so as to let in respondents' judgments as charges on both tracts.
On the 7th day of May, 1906, the Brewing Company took judgment against Herman Kuhlmann, before a justice of the city of St. Louis, for $ 130 and costs. A transcript thereof was filed in the office of the clerk of the circuit court of said city on the 1st day of April, 1907, showing, inter alia, a due constable's nulla bona return on a justice execution on December 11th, 1906.
On the 10th day of February, 1899, the Storage Company took judgment against Kuhlmann before another justice of said city for $ 200. A transcript thereof was filed in the office of said clerk on April 25, 1899, showing inter alia, a due constable's nulla bona return on a justice execution in May, 1899.
On the 29th of March, 1897, Ottofy took judgment for $ 100 against said Herman Kuhlmann before another justice of said city, on which execution issued and a due constable's return of nulla bona came in thereafter on June 27, 1897. A transcript of this judgment was presently filed in said clerk's office. This judgment was revived in March, 1907, in due form, by a proceeding before the successor of the justice rendering it originally. A transcript of the reviewed judgment, thereafter in March, 1907, was also filed in the office of said clerk. Presently a transcript execution was issued thereon by said clerk, and on March 26, 1907, a levy was made on said Madison and Cass tracts, which execution was returned by the sheriff, on the order of Ottofy, unsatisfied and without sale of the property levied upon. Prior to the revivor, a transcript execution was issued by the circuit clerk in 1900, and in August of that year the Madison tract was levied upon, but, by order of Ottofy, the execution was returned by the sheriff without a sale of the property and unsatisfied.
(Note bene: There is no question of homestead raised by appellants, nor does the testimony uncover or tend to establish a homestead right as against the complaining judgment creditors.)
Said judgments from that day to this remain unsatisfied in whole or in part. At the time Kuhlmann's said wife took title to the Madison tract there were other judgments against him, but whether they now are satisfied or outlawed by the flight of time is not disclosed.
It sufficiently appears that from May 24th, 1898 (the date Mrs Kuhlmann took title to the Madison tract), down to this day, Kuhlmann stood under the flag of insolvency and claimed the protection and immunities peculiar to its folds. Never since has he carried any real estate in his name. His choses in action then or since existing, if any, disappear as any part of his visible assets, and if they reappear at all they do so apparently as part and parcel of hers. So that he then became and ever since remained independently poor as to his creditors, beggared as to them to all outside appearances, and without a particle of visible property subject to legal process. It sufficiently appears also that if his complaining creditors have any remedy it is in equity. Whether such remedy exists depends on conclusions to be drawn from a close and discriminating judicial scrutiny of the scheme whereby Kuhlmann thenceforth filled the alleged office of agent for his wife and she in turn became apparent...
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