72 S.W. 527 (Mo. 1903), Balz v. Nelson

Citation:72 S.W. 527, 171 Mo. 682
Opinion Judge:MARSHALL, J.
Party Name:BALZ et al. v. NELSON et al., Appellants
Attorney:S. T. G. Smith for appellant. C. S. Broadhead and Percey Werner for respondents.
Case Date:February 18, 1903
Court:Supreme Court of Missouri

Page 527

72 S.W. 527 (Mo. 1903)

171 Mo. 682

BALZ et al.

v.

NELSON et al., Appellants

Supreme Court of Missouri, First Division

February 18, 1903

Transferred from St. Louis Court of Appeals.

Modified and affirmed.

S. T. G. Smith for appellant.

(1) Husband and wife can contract together the same as individuals. Seay v. Hesse, 123 Mo. 463. (2) A debt due a wife from a husband stands on as good a footing as a debt due any other person, and she may be given a preference over other creditors. Bank v. Winn, 132 Mo. 80; Hart v. Leete, 104 Mo. 337; Seay v. Hesse, 123 Mo. 450; Scott v. Klein, 61 N.W. (W. Va.) 918; McQuown v. Law, 18 Ill.App. 34; Fergusan v. Spear, 65 Maine 279; Rockford Shoe Co. v. Martin, 75 Iowa 112. (3) In the examination of questions of fraud, courts will look into all the circumstances, and while express and positive proof is not required, yet mere suspicion leading to no certain results will not be deemed sufficient to establish fraud. Ridge v. Greenwell, 53 Mo.App. 479; Waddingham v. Loper, 44 Mo. 136. (4) The right of one creditor of an insolvent debtor to secure a preference over others is not affected by the fraudulent intent of the debtor, or by knowledge thereof on his part, if there was no actual participation therein. Woolen Mills v. Wilson, 87 Mo.App. 145; Riley v. Vaughn, 116 Mo. 176. (5) The court indicated the theory on which he tried the case when he remarked: "There was no legal liability to pay the debt; it was merely a moral obligation; the statute of limitations would run against it; there was no legal liability on which she could maintain any recovery." (6) The statute of limitations does not run against a married woman. Besides, the transaction was executed and question of statute of limitations could not arise. Sutton v. Casselig, 77 Mo. 406; Waite on Creditors' Bills, 523. (7) Creditors have nothing to do with the homestead, for it is beyond their reach either at law or in equity. There can be no fraudulent conveyance of a homestead. Rose v. Smith, 167 Mo. 86; Bank v. Guthrey, 127 Mo. 195; Hart v. Leete, 104 Mo. 337. (8) The evidence showing the conveyance was made to secure the wife, if any decree of sale was to have been entered it should have been that all the property except the homestead should have been sold and the proceeds applied, first, to the payment of the money due the wife and interest thereon, the balance to the judgment of the plaintiff. Bank v. Winn, 132 Mo. 91; Gleitz v. Schuster, 168 Mo. 305. A return of nulla bona is necessary before a creditor's bill will lie. Merry v. Freeman, 44 Mo. 521; Humphrey v. Atlanta Mill Co., 98 Mo. 542.

C. S. Broadhead and Percey Werner for respondents.

(1) The conveyances to Decker and Mrs. Nelson were, admittedly, made by Nelson and his wife with the intent to hinder and delay these plaintiffs, and, even though they had been made for a valuable and adequate consideration, are still void as to plaintiffs, because of the intent with which they were made. Cason v. Murray, 15 Mo. 378; Johnson v. Sullivan, 23 Mo. 474; Knox v. Hunt, 18 Mo. 180; sec. 3398, R. S. 1899; Lackland v. Smith, 5 Mo.App. 153. (2) A participation by the wife in a fraudulent attempt on the part of her husband to conceal or cover up his property, for the purpose of putting it beyond the reach of other creditors, though an honest or valid debt is thereby secured or paid, will render the whole transaction fraudulent as to both. Bank v. Winn, 132 Mo. 88; Riley v. Vaughan, 116 Mo. 176; Sexton v. Anderson, 95 Mo. 379; Farwell v. Myer, 67 Mo.App. 566. (3) A voluntary conveyance by one of all his property, thereby rendering himself insolvent, intending afterwards to contract debts, which he does contract, is fraudulent and void as to such subsequent creditor, although there was no existing indebtedness of the grantor at the time of making the conveyance, and so much the more so where it is done to protect his property from an existing liability. Snyder v. Free, 114 Mo. 376; Hoffman v. Nolte, 127 Mo. 120; sec. 3398, R. S. 1899, p. 847; Hurley v. Taylor, 78 Mo. 238; Fisher v. Lewis, 69 Mo. 629. (4) When conveyance by insolvent debtor is claimed to be made in payment of an antecedent debt, the burden is on the parties thereto as against a creditor attacking for fraud to prove bona fides. Wood v. Peebles, 25 So. 723; American Net & Twine Co. v. Mays, 33 S.E. 523, 57 N.Y.S. 724; Walsh v. Ketchum, 84 Mo. 430; Bucks v. Moore, 36 Mo.App. 536. (5) Issue of execution and return of nulla bona may be dispensed with when it is shown that the debtor is insolvent. Merry v. Freeman, 44 Mo. 518; Turner v. Adams, 46 Mo. 95; Iron Co. v. McDonald, 61 Mo.App. 569. (6) Gross inadequacy of price is one of the badges of fraud in a sale and becomes controlling when coupled with other circumstances to show fraud. Card v. Lackland, 49 Mo. 451; Briant v. Jackson, 99...

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