Bartels v. Kinninger

• Decision Date: 31 May 1898
• Citation: 46 S.W. 163,144 Mo. 370
• Parties: BARTELS v. KINNINGER et al.
• Court: Missouri Supreme Court

46 S.W. 163

144 Mo. 370

BARTELS v. KINNINGER et al.

Supreme Court of Missouri, Division No. 2.

May 31, 1898.

HOMESTEAD — EXEMPTIONS — FRAUDULENT CONVEYANCE — CONVERSION BY AGENT — DEMAND.

1. Where property is acquired and occupied as a homestead and the deed placed on record before a certain debt is contracted by the grantee, the property is not subject to execution on a judgment for the debt, even though the owner convey it to his wife without consideration.

2. The transfer by the owner to his wife, without consideration, of land subject to execution is fraudulent and void as against a judgment creditor.

3. An agent who has money in his hands belonging to his principal, which he is instructed to loan upon real-estate security, becomes charged with the money without demand immediately upon conversion of it to his own use, although the principal subsequently took the agent's note for the amount so converted, and judgment was taken on the note.

Appeal from circuit court, Cape Girardeau county; H. C. Riley, Judge.

Suit by Mary Bartels against John E. Kinninger and others. Judgment for plaintiff, and defendants appeal. Affirmed.

W. H. Miller, for appellants. T. D. Hines, for respondent.

BURGESS, J.

This is a proceeding in equity by the plaintiff against John E. Kinninger and Alvina Kinninger, his wife, and A. G. Landgraf, to have set aside certain conveyances made by John E. Kinninger to them, and to subject the property described in the petition to sale under execution under a judgment held by plaintiff against John E. Kinninger. The property conveyed to the defendants Alvina Kinninger and Landgraf were separate and distinct tracts; the tract conveyed to Alvina Kinninger being the homestead of John E. Kinninger. The trial in the court below resulted in a judgment and decree in favor of plaintiff, and against John E. Kinninger and Alvina Kinninger, setting aside the deed from John to her, and in favor of Landgraf. John E. Kinninger and Alvina Kinninger appealed. No appeal was taken from the judgment in favor of Landgraf.

John E. Kinninger acquired the property involved in this appeal by deed from Aaron Abernathy and wife, on March 17, 1890, and filed the deed for record in the recorder's office of the county in which it lies, on the 6th day of May, 1890. Kinninger and wife occupied the property as their homestead from the time of this purchase, and were so occupying it at the time of the institution of this suit. On the 28th day of December 1893, John E. Kinninger conveyed this property to his wife, Alvina; but there was no consideration passed for the deed, which was, however, properly recorded on the 1st day of January, 1894. On January 1, 1890, and for a long time before that time, John E. Kinninger was the agent of his mother, the plaintiff, in loaning her money and collecting interest thereon. On that day he had on hand the sum of $2,533, which he received from her former agent, T. B. Whitledge. He continued to be his mother's agent until September 2, 1893, when they had a settlement; and plaintiff ascertained that he had used of her money the sum of $1,340 or $1,342, and, being unable to pay the same, he executed to her his note for that sum, upon which judgment was rendered in her favor for the sum of $1,413.57, in the circuit court of Cape Girardeau county, at the May term, 1894. Execution was issued on this judgment July 21, 1894, which was returned unsatisfied, no property being found whereon to levy the same.

Defendants contend that the petition does not state facts sufficient to authorize the intervention of a court of equity, for the reason that it discloses upon its face that at the time that John E. Kinninger acquired the property in question, and occupied it as his homestead, he was not indebted to plaintiff in any sum of money whatever, but, on the other hand, he was her agent, and that that relationship continued to exist until this...