Pickel v. Pickel

• Decision Date: 09 May 1912
• Parties: ELLA M. PICKEL v. WILLIAM PICKEL and FREDERICK J. PICKEL, Appellants
• Court: Missouri Supreme Court

147 S.W. 1059

243 Mo. 641

ELLA M. PICKEL v. WILLIAM PICKEL and FREDERICK J. PICKEL, Appellants

Supreme Court of Missouri, Second Division

May 9, 1912

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed (in part).

Barclay Fauntleroy & Cullen for appellants.

(1) A father has a right to give property to his son on condition by will or otherwise and retain the title, giving to the son the income, and creditors have no right to complain. Such a gift does not become effective to pass title and may be revoked at any time and the record title put in the donor. Partridge v. Covender, 96 Mo. 452; Roden v Helm, 192 Mo. 86. (2) A conditional gift does not pass title; hence Frederick J. Pickel never had title to any of the stocks in controversy. The elder Pickel retained the ownership and the right to control said stocks and the certificates were always held in escrow by the Pickel Marble & Granite Company. Albert v. Albert, 21 Mo. 277; Thomas v. Thomas, 107 Mo. 459, 20 Cyc. 1210; Keyl v. Westerhaus, 42 Mo.App. 49; In re Soulard, 141 Mo. 642; Banking Co. v. Miller, 190 Mo. 640; Pennell v. Ennis, 126 Mo. 355; Godard v. Conrad, 125 Mo.App. 165. (3) A mere expectation of future indebtedness or even an intent to contract debts, if it be only an intent, not coupled with a purpose to convey the property in order to keep it from being reached by the creditors, will not make the conveyance invalid as against such future creditors. Payne v. Stanton, 59 Mo. 158; Pepper v. Carter, 11 Mo. 540. (4) The general rule is that a voluntary conveyance cannot be set aside at the instance of subsequent creditors, in the absence of proof that the conveyance was made with actual fraudulent intent. Krueger v. Vorhauer, 164 Mo. 156; Caldwell v. Smith, 88 Mo. 44; Scudder v. Morris, 107 Mo.App. 634. (5) The statute on the subject 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 transferring to the rightful owner property held in trust for him. If a debtor holds the legal title to property which in equity belongs to another, his conveyance of the legal title to such equitable owner will not be deemed fraudulent as to the creditors of the former. De Berry v. Wheeler, 128 Mo. 59; Aultman v. Booth, 95 Mo. 383; Desmond v. Myers, 113 Mich. 437; Dermott v. Carter, 109 Mo. 21; Bank v. Miller, 24 A.D. 551; Clark v. Rucker, 7 B. Mon. (Ky.) 583; Donohoe v. Hull, 24 Can. S.Ct. 683; Mills v. Scott, 43 F. 452; Jauch v. De Socarros, 56 N.J.Eq. 538. (6) As shown by the averment of the bill and by the proof, Fred J. Pickel had, at the time he returned the stocks, ample means to meet all his obligations then existing and all future obligations which he, as a reasonable man, might anticipate, and hence the transfers cannot be set aside and the plaintiff is not entitled to relief in equity. Welch v. Maim, 193 Mo. 325; Walsh v. Ketchum, 84 Mo. 431. (7) The creditor must show that he has failed in the ordinary mode of collection to make his debt, and that, independent of the property so conveyed in fraud of his rights, there is not sufficient to satisfy such debts. For, if it is alleged or shown there is other property sufficient for that purpose, it is an act of capricious intermeddling with the contracts of others to permit the creditor to interfere and set the conveyance aside. Merry v. Fromon, 44 Mo. 518; Somerville v. Hellman, 210 Mo. 574. (8) The petition contains no averment that defendants William Pickel or Fred J. Pickel are insolvent; insolvency is essential to equity jurisdiction, as otherwise there is a complete remedy at law; where one is sought to be charged in equity for conversion of stock in a corporation, it is necessary that the petition allege that the converter is insolvent. Somerville v. Hellman, 210 Mo. 567. Plaintiff must show that she has exhausted all remedies at law, because equity has no jurisdiction where legal remedy is complete. The allegations in the case at bar show that plaintiff has a remedy at law. In these circumstances no equity appears in the bill. McKee v. Allen, 204 Mo. 674. (9) On the contrary it affirmatively appears that the defendants are not insolvent, for it is alleged "that defendants are all possessed of practically unlimited financial resources." Wherefore no cause of action is stated. Somerville v. Hellman, 210 Mo. 567. Property fraudulently transferred is subject to garnishment in the hands of the transferee, and equity will not assume jurisdiction to set aside the transfer. Humphreys v. Atlantic Co., 98 Mo. 549; Hungerford v. Greengard, 95 Mo.App. 659; McDaniel v. Bryan, 123 Mo.App. 640; Dunlap v. Mitchell, 80 Mo.App. 395. Property fraudulently conveyed, and its proceeds, may be reached in the hands of the transferee by garnishment. Epstein v. Clothing Co., 67 Mo.App. 221; Strauss v. Ayres, 34 Mo.App. 255; Organ Co. v. Pettil, 34 Mo.App. 545. (10) Equity cannot entertain this proceeding to avoid a multiplicity of suits. The decision in any one action at law settles (so plaintiff pleads) all questions. Because executions may issue every thirty days on a judgment already entered is not a sufficient basis to support an action in equity. Ins. Co. v. Morlman Co., 73 F. 68. (11) This decree may be likened unto an excessive levy under an execution, and the same reasons which induce the courts to hold excessive levies illegal should operate to influence the court to hold this decree seizing seven or eight thousand dollars' worth of property to satisfy a judgment for a few hundred dollars erroneous and oppressive. 2 Freeman on Executions (3 Ed.), sec. 253. (12) The decree is erroneous because it impounds and sequesters a vast amount of property and requires both the corpus and income to be held and applied to the payment of contingent obligations to fall due in the future. The courts have no power to strip a man of all his property and deny him the right to use it because some years hence he may have to meet a contingent and unmatured demand. Egan v. Fush, 46 La. Ann. 474; Baviere v. Feste, 9 La. Ann. 535; Neilson v. Pool, 17 La. 209.

Randolph Laughlin for respondent.

(1) Conceding to appellants the utmost benefit that can be claimed from their own evidence in their own favor, at the time of the original conveyances from William to Frederick there was no condition precedent attached as a condition of delivery of title which operated to prevent the vesting in Frederick of a full and complete title to all of the property in suit. Beatty v. College, 177 Ill. 295; Doty v. Willson, 47 N.Y. 580; Matter of Hicks, 14 N.Y. 320; Hackett v. Moxley, 65 Vt. 75; Fassett's Appeal, 167 Pa. St. 452; 20 Cyc. 1210. There is absolutely no evidence tending to show that there was any condition precedent to the vesting of title in Frederick, and no evidence that the property remained the property of William; and the evidence that there was an agreement or a condition subsequent, whereby William reserved the right to recall his gifts, is overturned by evidence to the contrary. Chambers v. Chambers, 227 Mo. 283; Laughlin v. Leigh, 226 Mo. 640; People v. Board, 245 Ill. 343. The condition, reservation, or remainder claimed by William Pickel to have been attached to his gifts to his son, was and is null and void on its face. R. S. 1909, sec. 2884. The phrase "goods or chattels" as used in this statute, includes shares of stock. So also does the word "property." Fine v. Hornsby, 2 Mo.App. 64; Bernhardt v. Walls, 29 Mo.App. 210; Banta v. Chicago, 172 Ill. 204; Boardman v. Cutter, 128 Mass. 390; Ayres v. French, 41 Conn. 151; North v. Forest, 15 Conn. 404; Ellison v. Brigham, 38 Vt. 66; French v. Schoonmaker, 69 N. J. L. 6; Kendall v. Kendall, 4 Russ. 370; In re Gold, 80 U.S. 362; Curtis v. Phillips, 5 Mich. 113; Stuart v. Marquis, 11 Ves. 665; Foxall v. McKeanney, 9 Fed. Cas. 646; Blount v. Haney, 43 Mo.App. 652; Cook v. Clippard, 12 Mo. 379; McDermott v. Barnum, 16 Mo. 114. William's claim was also void as in conflict with the Statute of Frauds, R. S. 1909, sec. 2783. Independent of the above, William's conduct in holding Frederick forth as the true owner of the property in suit; in permitting him to act as such for more than ten years, and to contract a marriage and become a father on the faith of his apparent ownership, and to thereby incur obligations to respondent, to her child, and to society, which now rest upon him in the form of judgments, estops William to now deny the truth of the situation which he thus proclaimed. McDermott v. Barnum, 19 Mo. 208; Snodgrass v. Emery, 66 Mo.App. 466; Busby v. Altes, 140 Mo.App. 718; Camp v. Railroad, 62 Mo.App. 85; Ratican v. Depot Co., 80 Mo.App. 535; Reischick v. Klinghoefler, 91 Mo.App. 430; Huntsucker v. Clark, 12 Mo. 339; Price v. Hallett. 138 Mo. 573; Bank v. Doran, 109 Mo. 49. Marriage and motherhood are valuable considerations, and entitle respondent to invoke the doctrine of estoppel. Lionberger v. Baker, 88 Mo. 447; Bank v. Read, 131 Mo. 553; Nowack v. Berger, 133 Mo. 24. (2) The transfers were fraudulent, and in fraud of respondent's rights. All of the property transferred belonged to Frederick. He not only did not reserve sufficient property to discharge his debts, but he did not reserve any property at all, except only one share of Pickel Realty stock which was omitted through mistake. Respondent was not a mere subsequent creditor. Her right to support dated from her marriage. A wife who recovers a judgment for support or alimony is a creditor of her husband within the purview of the statute governing fraudulent conveyances, and a conveyance made by him which is either voluntary, or made with the intent to defeat the collection of her judgment, and after...