Kincaid v. Irvine

• Citation: 140 Mo. 615,41 S.W. 963
• Parties: KINCAID et al. v. IRVINE.
• Decision Date: 06 July 1897
• Court: United States State Supreme Court of Missouri

41 S.W. 963

140 Mo. 615

KINCAID et al. v. IRVINE.

Supreme Court of Missouri, Division No. 2.

July 6, 1897.

FRAUDULENT CONVEYANCE — WHAT CONSTITUTES.

A debtor, knowing that he would soon die, executed a deed to his brother, which recited as a consideration the agreement to pay a mortgage of $400 and a note of $250. Oral evidence showed that there was a further consideration of the extinguishment of a debt to the grantee of $408, and a promise to pay a debt of $125 to a third brother. The four sums did not exceed the value of the land. Held, that there was no fraud in the transaction, as against the grantor's other creditors.

Appeal from circuit court, Pike county; Reuben F. Roy, Judge.

Bill by John J. Kincaid and others against Jesse Irvine. From a decree for defendant plaintiffs appeal. Affirmed.

Clark & Dempsey and Tapley & Fitzerrel, for appellants. J. D. Hostetter, for respondent.

GANTT, P. J.

This is a suit in equity to set aside a deed to 80 acres of land made by William R. Irvine to Jesse Irvine. Plaintiffs are creditors of William R. Irvine, who died soon after the execution of the said deed to his brother. They have had their claims, amounting in the aggregate to $361.15, duly probated against his estate. The bill charges fraud in the said conveyance, in this, to wit: That said pretended conveyance was made without consideration, or at least for a nominal sum, compared with the value of said land, and was fraudulent and void against creditors, as defendant well knew at the time; that said William R. Irvine was rendered insolvent by said deed, and left no property out of which plaintiffs' judgments could be made, other than said land. Defendant for answer denied all charges of fraud, and, further answering, says it is true that William R. Irvine a short time prior to his death conveyed to him by deed the real estate mentioned and described in plaintiffs' petition, and that at the time of said conveyance being made the said William R. Irvine was indebted to one James D. Staley in the sum of $400 and interest accrued thereon, which indebtedness is secured by a deed of trust on said real estate, and that he was also indebted to one W. B. Brashears in the sum of $291.60, and that he, the said defendant, was security on the note given by said William R. Irvine to said Brashears, evidencing said indebtedness, and that said William R. Irvine was also at said time indebted to defendant in the sum of $408, with interest thereon from October, 1892, up to the time of said conveyance; and that at said time the said William R. Irvine was also indebted to James Irvine, a brother of said William R. Irvine and this defendant, in the sum of $125 and accrued interest, and being so indebted as stated above, and desirous of protecting his said brothers, James Irvine and this defendant, in the said debts due to each of them, respectively, and in the indebtedness for which defendant was security for said William R. Irvine as stated above, he, the said William R. Irvine, in good faith, made, executed, and delivered said deed of conveyance, which was in good faith accepted by this defendant. "Defendant, further answering, says that the consideration for said deed was as follows: (1) He, the said defendant, assumed the payment of the Staley debt, secured by the deed of trust on real estate as above stated. (2) He, the said defendant, assumed the payment of the debt due W. B. Brashears, on which indebtedness defendant was security for said Wm. R., as above stated. (3) The indebtedness due from said Wm. R. to defendant, as stated above. (4) The debt due from said Wm. R. to his brother James Irvine, as stated above, which debt defendant agreed to pay, and has since paid off and discharged. Defendant says that he has also paid off and discharged the W. B. Brashears debt, and that his own debt against said William R. Irvine is paid off and canceled by said conveyance, and that he has paid a full, fair, and reasonable price for said real estate, and that he procured said deed for the sole purpose of protecting himself and his said brother James Irvine in their bona fide debts due them from said Wm. R., and in the debt due from said Wm. R. to said W. B. Brashears, on which defendant was his security, and that that was also the purpose of said Wm. R. in making said deed, and that there was no intention or design on the part of said Wm. R. or this defendant to defraud the creditors of said Wm. R., in making said conveyance, but that the same was in good faith made and accepted. And now, having fully answered, defendant asks to be discharged with his costs." The reply was a general denial. The court submitted to a jury the issue as to what was the true amount of the consideration of the deed from William R. Irvine to Jesse Irvine, and whether said consideration was fair and reasonable for such land. The jury by their verdict found that defendant agreed to pay $1,224.60 for the land, and that said amount was a reasonable and fair consideration for the land. The court approved the finding of the jury, and dismissed the bill.

The evidence tended to establish that the first and second items of the consideration for the deed...