Lander v. Ziehr

Citation150 Mo. 403,51 S.W. 742
PartiesLANDER v. ZIEHR et al.
Decision Date06 June 1899
CourtUnited States State Supreme Court of Missouri

2. A husband, while largely indebted, made a voluntary conveyance to his wife of all the property he had to which his creditors could look for the payment of their claims. He subsequently paid a large amount of debts due when the conveyance was made, but contracted others while he was continuing to exercise acts of ownership over the property, and while his creditors supposed he was still the owner. One person loaned him money on his promise to give the property for security, and he put off giving the security on various pretexts, until he finally declared that he had conveyed it to his wife. Held, that a decree canceling the conveyance as being fraudulent as against subsequent creditors was sustained.

Appeal from circuit court, Linn county; W. W. Rucker, Judge.

Suit by Harry Lander against John Ziehr and others. Decree for plaintiff, and defendants appeal. Affirmed.

This is an appeal from a decree of the circuit court of Linn county adjudging certain conveyances of the defendant John Ziehr to his wife, Emma Ziehr, and to Judge Brownlee as trustee for her, to be fraudulent and void. The trustee is a mere formal party, and has no interest in the cause, save as the holder of the legal title. One of the deeds purports to have been made by John Ziehr to his wife on December 22, 1891, and recorded March 17, 1892, and conveys the residence of John Ziehr in Brookfield and a brick building known as his saloon property, for the consideration of love and affection. The other deed, made long after the levy of the attachment and long after the accruing of the debts for which the property was sold, was to W. H. Brownlee, as trustee for Mrs. Ziehr, and was recorded February 23, 1895. John Ziehr inherited the said real estate from his father in 1890. Previous to this time he and his brothers, George and William, were in partnership in the coal, wood, beer, and ice business in Brookfield, and also engaged in draying. He was married to his co-defendant Emma Ziehr in 1889. She brought him no property, and was possessed of none in her own right. In 1890 he received as his share of his father's estate a residence worth $3,000, the saloon property worth $6,000, and an ice house worth about $500. In the partition of the property the defendant John Ziehr obligated himself to his mother, brothers, and sisters to the amount of $1,700, and, to secure one of the brothers $450, mortgaged the ice house for that sum, and on a subsequent foreclosure it sold for $35, subject to that mortgage. To liquidate the claims of the others, he made an overdraft of $800 on the Bank of Brookfield, and continued to owe his mother $200 in 1892. Outside of the foregoing real estate, John Ziehr owned some personal property, several horses and mules, drays, and personal effects, all of which was afterwards sold under a chattel mortgage for $350. He was a partner in a saloon, and obtained $320 for his share therein in January, 1892. He testified, however, that he kept $500 in money on hand at his home as "a reserve." He testified, also, to book accounts due him to the amount of $714; but on cross-examination it appeared that these were so largely offset by counter accounts of merchants, and others to whom he was indebted, that they could scarcely be called assets. After the dissolution with his brothers, John Ziehr, the defendant, continued in the ice, coal, and beer business alone; and it was soon apparent that his brothers were selling better ice than he was, and he began to look about for an artificial ice plant. He had little or no capital invested in his business at this time. He bought coal and beer on time, and relied on selling it to meet his payments. No one, from his evidence, can approximate what his real financial condition was for several years. He says he was making money, but the result demonstrates that he was either mistaken or has secreted his property. He owed the coal men and the brewing company of whom he bought considerable money, and he made them payments; but it appears that when he paid them he increased his indebtedness to the Bank of Brookfield, which permitted him to overdraw on the faith of his ownership of property. The evidence does not show the exact date of the delivery of the deed he made directly to his wife, and which bore the date of December 22, 1891; but it does appear that between that date and its record, March, 1892, he was indebted to the Bank of Brookfield from $700 to $1,000, which debt was a running account, and increased from time to time until the spring of 1894, when it reached $2,400, and has never been paid. On the 22d of December, 1891, he owed Anheuser-Busch $137, and this sum increased to $460 before the record of the deed in March, 1892. The indebtedness increased until the spring of 1894, when it amounted to $1,800, and has never been paid. This business was done at Brookfield, and these creditors did not know that he had put to record the deed to his wife at Linneus, the county seat. It is entirely clear that this credit was extended to him on the assumed ownership of the dwelling house and saloon property. The evidence of his partner, Gordon, tends to establish that in October, 1891, John Ziehr conceived the plan of erecting an artificial ice plant, which he ascertained on a visit to St. Louis would cost $20,000. With this purpose in view, he conveyed the only available real estate he had to his wife, and by this deed practically rendered himself insolvent. After making this deed, he continued to be the ostensible owner of this real estate, as if it was his own. He gave it in to the assessor for 1891, 1892, and 1893 as his own. He paid the taxes out of his own money, insured it in his own name, and paid for the insurance out of his own funds to the local agency in Brookfield. Gordon, his tenant, knew nothing of the transfer, and continued to pay him the rent monthly, and John Ziehr receipted to him in his own name therefor. He says himself he used these rents in his own business, and never paid his wife a cent. He kept no account of it with her. He contracted for expensive improvements, and paid for them out of his own money. In 1894, for the first time, he caused the property to be assessed to his wife, and had it insured in her name; and never, until pressed by De Graw, who had loaned him $6,000, did he state that the property belonged to his wife. In the meantime he had become indebted to the amount of $13,000. When he and Gordon went to De Graw to borrow of him $6,000, De Graw told them that he would not take security on any unfinished building like the ice plant, but would advance the money and take as security his saloon property and other property. When this statement was made, John Ziehr assented, and did not by word or deed indicate that he did not own the property, but said that they wanted to get the money along from time to time, as they needed it, and when he got the full amount of $6,000 he would secure it as desired. Ziehr was regarded as the responsible party, and according to the evidence it was fairly understood between De Graw, Ziehr, and Gordon that Ziehr was to secure the $6,000 by deed of trust on his saloon property, and other property sufficient to make ample security. This was in the spring of 1894. And, on the strength of these representations and his apparent ownership of this substantial property, De Graw, through the Linn County Bank, from time to time advanced to Ziehr and Ziehr & Gordon $6,000; and, when security was asked by De Graw on the saloon property as promised, John Ziehr pleaded business engagements from time to time, but promised to give the security and have it fixed up as soon as possible, and when pressed by Arbuthnot, acting for Bank of Brookfield and De Graw, he claimed that his wife objected to signing the deed of trust. These pretexts and excuses by Ziehr continued for some time, and when, at last, De Graw and Arbuthnot...

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30 cases
  • Friedel v. Bailey, 29779.
    • United States
    • United States State Supreme Court of Missouri
    • November 20, 1931
    ......Snyder v. Free, 114 Mo. 360; Lauder v. Ziehr, 150 Mo. 403. (10) When a deed is shown to be voluntary as to existing creditors the burden of proof rests upon the donee to establish the ......
  • Friedel v. Bailey
    • United States
    • United States State Supreme Court of Missouri
    • November 20, 1931
    ...... may have been ignorant of the insolvency and of the fraud. Snyder v. Free, 114 Mo. 360; Lauder v. Ziehr, 150 Mo. 403. (10) When a deed is shown to be. voluntary as to existing creditors the burden of proof rests. upon the donee to establish the ......
  • Johnson v. Murphy
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1904
    ...pp. 548, 549, 550; Waite on Fraud. Conv. (3 Ed.), secs. 277, 278, 279; 14 Am. and Eng. Enc. Law (2 Ed.), pp. 494, 495, 496, 497; Lander v. Ziehr, 150 Mo. 409. (d) But wherever a conspiracy is shown, between the debtor and his grantees to cover up the property and conceal it from creditors, ......
  • Stierlin v. Teschemacher
    • United States
    • United States State Supreme Court of Missouri
    • October 28, 1933
    ...... benefit of the defendant Amy Bennett. Sec. 3117, R. S. 1929;. McElvain v. McElvain, 20 S.W.2d 912; Lynes v. Holt, 1 S.W.2d 122; Lander v. Ziehr, 150 Mo. 413. (4) Where a defendant shows himself entitled to. affirmative relief against a codefendant, he will, as against. him, be ......
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