Hoffman v. Nolte

• Decision Date: 05 March 1895
• Citation: 127 Mo. 120,29 S.W. 1006
• Parties: HOFFMAN v. NOLTE et al.
• Court: Missouri Supreme Court

29 S.W. 1006

127 Mo. 120

HOFFMAN v. NOLTE et al.

Supreme Court of Missouri, Division No. 2.

March 5, 1895.

FRAUDULENT CONVEYANCE — FROM HUSBAND TO WIFE — EVIDENCE.

1. Land acquired by a husband is presumed, in the absence of rebutting evidence, to have been purchased with the property of the husband.

2. A voluntary conveyance by a debtor to his wife is, as against prior creditors, presumptively fraudulent.

3. To render a voluntary conveyance by a husband to his wife valid, as against prior creditors, the burden of proof is on the grantee to show that the debtor retained sufficient property to pay his debts.

4. In an action to set aside a deed by a husband to his wife, it appeared that 10 years before the purchase of other land by the grantor, the proceeds of which on resale were used to purchase the land in question, he and his wife were immigrants, and were furnished money by his sister to reach St. Louis, where, until the year before the purchase of the first land, he worked as a driver and truck gardener; that at the time of the deed in question a number of lawsuits were pending against the grantor; and that he acknowledged to several friends that he had conveyed the land to his wife, so that, if he had any trouble, he would have nothing. The third person through whom the conveyance was made testified that no consideration moved from him to the husband or from the wife to him. The wife testified that the land was purchased with money she had brought from Germany; that she had kept the money hid about the house, and at one time lost it; that she could not tell where she found it; and that she borrowed $1,400, to make a deferred payment, from a friend, whose name she had forgotten, and who did not require security. Held, that the conveyance was fraudulent.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Petition by Edward Hoffman against Anna Nolte, personally and as executrix, and others. From a judgment for defendants, plaintiff appeals. Reversed.

Carlisle & Ottofy, for appellant. Stone & Slevin, for respondents.

GANTT, P. J.

This is an action in equity to divest the title from defendant Anna Nolte in certain real estate in the city of St. Louis, and to set aside a certain deed of conveyance thereto by Joseph Nolte, on the ground that it was executed in fraud of creditors. The tract contains 21.39 acres. The substance of the petition is as follows: Plaintiff states that on the 15th day of March, A. D. 1892, he recovered a judgment in the circuit court of the city of St. Louis, state of Missouri, against Joseph Nolte, now deceased, for the sum of $1,679.60, as appears by the certified transcript of the proceedings in said cause, herewith filed and marked "Exhibit A"; that execution issued thereon against the property of the said Joseph Nolte, directed to the sheriff of said city and state, which said execution has been returned by the said sheriff wholly unsatisfied; and said judgment is wholly unpaid and unsatisfied, and the whole thereof, with interest from said 15th day of March, 1892, is still due plaintiff from the said Joseph Nolte, deceased. Plaintiff further states that said deceased, Joseph Nolte, with a view and with the intent to hinder, delay, and defraud his creditors, and, among others, this plaintiff, did on the 23d day of October, 1883, execute a certain conveyance of that date, in which the defendant Anna Nolte, his wife, joined and relinquished her dower, whereby he assigned to one John C. Gmeiner, now deceased, certain property situated in the city of St. Louis and state of Missouri, and described as follows, to wit: "A tract of land in United States survey 1,913 [here follows a description of the land by metes and bounds], containing 21.39 acres, which said conveyance is recorded in Book 714, at page 394;" that, upon the execution and delivery of said deed, no possession was ever taken of said property by the said Gmeiner, but that on the same day and date, and immediately thereafter, the said Joseph Nolte, deceased, caused another conveyance of said above-described property to be made by the said Gmeiner to himself, said Joseph Nolte, and the defendant Anna Nolte, which said conveyance is of record in the recorder's office of the city of St. Louis, Missouri, in Book 709, at page 523; that the said Joseph Nolte, deceased, had and retained possession of said property, and that the said Gmeiner never in any manner took possession of the same or entered thereon. Plaintiff states that in truth no consideration passed from the said Gmeiner to said Joseph Nolte, deceased, and Anna Nolte, his wife, one of these defendants, nor did any consideration pass from the said deceased, Joseph Nolte, and Anna Nolte, one of these defendants, to the said Gmeiner in the subsequent reconveyance to them aforesaid, but that both of said conveyances were voluntary ones, and without consideration, and made, as above stated, for the purpose of hindering, delaying, and defrauding the creditors of said Joseph Nolte, deceased, of which purpose the said Anna Nolte, defendant herein, was fully cognizant at the time such conveyance was made. Plaintiff further states that the said Johanna M. Werkmann, one of the said defendants, is the sole heir of said John C. Gmeiner, and that said defendant John J. Werkmann is her husband; that the said Joseph Nolte departed this life on the 21st day of June, 1892, and that said defendant Anna Nolte is his widow and sole legatee under his will, duly probated in the probate court of said city and state on the 25th day of June, 1892, and recorded in Book V, at page 665, and that she was, in pursuance of said will, on said date, appointed the executrix of the estate of the said Joseph Nolte, deceased, without bond; that defendant Nicholas Nolte and Joseph Nolte are the surviving children and only heirs of the said Joseph Nolte, deceased. Plaintiff further states that on the 11th day of July, 1892, the said defendant Anna Nolte, as executrix, filed in the said probate court an inventory and appraisement of the entire and complete estate of the said Joseph Nolte, deceased, and that the same was duly appraised at the sum of $169.55, and that the same is exempt from liability for the debts of the deceased. Plaintiff states that said Joseph Nolte, deceased, left no other property out of which the judgment and execution aforesaid can be satisfied in whole or in part, and that, unless the property so fraudulently assigned to defendant Anna Nolte can be reached and applied to the payment of the said judgment, the same must remain wholly unpaid. Wherefore plaintiff prays for a decree that both of the said conveyances aforesaid be adjudged fraudulent and void as against plaintiff; that the same be set aside and for naught held; that the property therein mentioned be ordered to be sold for the satisfaction of said judgment of plaintiff; and that defendants be in the meantime enjoined and restrained from disposing of said property, or paying out any of the proceeds thereof, or in any wise interfering therewith, and for such other and further relief as to the court shall seem meet and just.

All the defendants except Johanna and John J. Werkmann were duly served with process. Those served filed an answer containing a general denial of the averments of the petition. Joseph Nolte and his wife, Anna, German immigrants, landed in New York in the month of May, 1868. His sister, Mrs. Anna Sieler, sent him the money to enable them and his brother Henry to reach St. Louis. He commenced life here as a driver. Finally, about 1878, he drifted into the business of truck farming or gardening. About August 15, 1878, Joseph Nolte hired Edward Hoffman, the plaintiff, then a boy, as a farm hand, who continued in his employ until August 15, 1886. About October 1, 1879, Joseph Nolte bought the Carondelet farm for $2,400, taking a deed in the joint names of himself and wife, and gave a deed of trust on the property on the same day for $1,000. He collected the proceeds of the business, and hired the employés. Briefly, it was his business in all respects, his wife attending to the household duties. October 17, 1881, he paid off the deed of trust for $1,000; and August 18, 1883, he sold the Carondelet farm for $3,050 cash. September 22, 1883, he bought the Natural Bridge road property, described in the petition, taking the deed in his name, the consideration being $6,417. He paid $3,417 cash, and assumed a deed of trust for $3,000 on this and other property. On October 23, 1883, Joseph Nolte and his wife, Anna, one of the defendants, transferred the property described in the petition to John C. Gmeiner, for a purported consideration of $6,417, which was recorded on the same day at 1:08 p. m. On the same day, October 23, 1883, Gmeiner conveys the property to Joseph Nolte and Anna Nolte, his wife, for a pretended consideration of $6,417, they to assume a certain deed of trust. June 10, 1890, the deed of trust for $3,000 on the property described in the petition was released of record. At the time of his purchase of the property in question, he stated that he had enough money to pay the deed of trust, and that he had his money at the Christian Brothers. It appears that he had money on deposit there at various times and in various amounts from 1878 to 1884. Judge Alexander Davis, a neighbor of Nolte's, testified that about the time that Nolte acquired the property in question, shortly after, he had litigation about a windmill, and he said "it was giving him a great deal of trouble, and that the property was not his now, or was not going to be his." He also had lawsuits in the criminal court. Conrad Oxman, a gardener, who knew Nolte for 16 years, testified that, about the time of the transfer by Nolte to his wife, Nolte told him that "he was turning everything over to his wife; * * * that there might come trouble some time." John Brugge, a neighbor, who knew Nolte for 15 years, testified that,...