Allison v. Mildred

• Decision Date: 12 November 1957
• Docket Number: No. 45605,No. 2,45605,2
• Citation: 307 S.W.2d 447
• Parties: Hobart T. ALLISON, Appellant, v. A. W. MILDRED, Vincil Mildred, and Mildred E. Mildred, and Mutual Benefit Life Insurance Company, a Corporation, Respondents
• Court: Missouri Supreme Court

Page 447

307 S.W.2d 447

Hobart T. ALLISON, Appellant, v. A. W. MILDRED, Vincil Mildred, and Mildred E. Mildred, and Mutual Benefit Life Insurance Company, a

Corporation, Respondents.

No. 45605.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 9, 1957.

W. W. Van Matre, Jr., J. W. Buffington, Mexico, for appellant.

Fry, Edwards & Wright, Jackson A. Wright, Mexico, for respondents Vincil Mildred and others.

Don C. Carter, Sturgeon, for respondent A. W. Mildred.

BOHLING, Commissioner.

This is a suit by Hobart T. Allison, a judgment creditor, against A. W. (also known as Willard) Mildred, the debtor and grantor, and Vincil Mildred and Mildred E. Mildred, husband and wife, the grantees, and Mutual Benefit Life Insurance Company, a corporation to set aside two deeds, one conveying a 200-acre tract (sometimes herein referred to as the farm), and the other conveying a 60-acre tract in Audrain County, Missouri, on the ground said deeds were made to hinder, delay and defraud said creditor and were the result of a conspiracy between said grantor and grantees. Sec. 428.020. (Statutory references are to RSMo 1949 and V.A.M.S.) The answers, so far as material, were denials. Defendant Mutual Benefit Life Insurance Company holds a deed of trust against the 200 acres to secure an original indebtedness of $4,000. Plaintiff stated to the court he was presenting no issue respecting the validity of said deed of trust; and, unless otherwise indicated, the word defendants herein refers to the individual defendants, each of whom testified on their behalf at the trial. The chancellor found the facts in favor of all defendants, and the decree was in accord therewith. The main controversy is over the 200 acres.

A. W. and Vincil Mildred are brothers. They purchased the 200 acres for $3,200, and gave a deed of trust, dated November 10, 1939, thereon to sucure $2,300 of the purchase price. For two years prior to 1945 the brothers rented or leased the 200 acres, and A. W., although he was not sure, testified he worked at the A. P. Green Firebrick Company's storeroom, and in the Fall of 1944 for the Sinclair Oil Company in Mexico. Vincil has worked for the Green Company since 1933, and as a supervisor since 1936. In 1939 he purchased 40 acres east of Mexico, Missouri. He married defendant Mildred E. Mildred in August, 1942. They lived on the 40 acres.

By a warranty deed, recorded March 18, 1944, Vincil and his wife conveyed his one-half interest in the 200 acres to A. W. for a consideration of $3,000. A deed of trust against the 200 acres was recorded March 18, 1944, securing A. W.'s $3,000, 6%, note payable to the Mexico Savings Bank. This note shows two credits of $90 interest each on '9-18-44' and '3-18-45.' We understand the $2,300 indebtedness against the 200 acres was discharged. A. W. testified he paid Vincil all but $500 of the purchase price at that time but did not remember whether he gave a note for the $500. Vincil testified he received $1,150 from A. W. and a note for $500; and on cross-examination also stated: 'I don't know as I ever saw the note. I don't know whether I even got it or not.'

On May 18, 1944, defendant A. W. Mildred was served with summons in a suit by plaintiff to recover $10,000 damages, which suit resulted in a judgment against defendant of $5,000 actual and $5,000 punitive damages on March 28, 1950, for criminal conversation with plaintiff's wife. This judgment, upon appeal, was affirmed. Allison v. Mildred, Mo., 245 S.W.2d 86. Execution was issued and returned nulla bona November 3, 1952. Said judgment is unpaid.

Vincil and his wife read an article in the Mexico paper of May 20, 1944, of plaintiff's suit against A. W. for $10,000 damages. She stated she never discussed the suit with her husband or with A. W. In a deposition offered by plaintiff as an admission against interest Vincil stated he saw A. W. about once or twice a month and that 'naturally' they discussed the suit. On direct examination at the trial he stated: 'I don't remember ever having any conversation versation with him about it, no.' On cross-examination he stated he did not remember that far back, but that he gave the testimony appearing in the deposition. A. W. testified he and his brother might have said something about plaintiff's suit for damages, but he did not remember what was said.

On May 24, 1944, six days after service of the aforesaid summons, A. W. deeded the 200 acres to 'S & N Trading Company, a corporation,' (hereinafter for convenience referred to as S & N), the grantee assuming and agreeing to pay the $3,000 deed of trust. This deed was recorded May 24, 1944. R. G. Stewart, who was dead at the time of trial, and Forest T. Noel represented S & N.

A. W. testified: He sold to get money to fight plaintiff's suit and to pay some bills. He cashed S & N's $3,000 check at the Mexico Savings Bank, where he banked. He paid all bills, except the $500 he owed Vincil. He did not remember whether he paid all his bills. He thought he got a little 'over $2,000 cash.' The bank 'held out' $500 or $600. He had about $2,300 after paying the bank, and he placed approximately $2,300 in a lock box at the bank, because he didn't want some one who was suing him 'messing with it.'

A. W. testified the 200 acres was the only property he owned when he sold to S & N. He was not living on the land and he had no livestock.

Four weeks later, to wit, June 21, 1944, A. W. contracted with S & N to repurchase the farm. This contract, after naming the parties, recited that S & N 'has this day sold to' A. W. the farm, describing it, 'for the sum of' $6,750 'to be paid in the following manner:' $1,250 'cash, the receipt is hereby acknowledged, and the balance of' $5,500 'with interest at' 6% 'from May 24, 1944, to be paid December 20, 1944.' A. W. 'agrees to pay all taxes and insurance.' This was followed by the signatures of the parties.

A. W. testified he repurchased for $750 more than he sold because he thought the land was worth the money, and that he secured the $1,250 from his lock box.

A. W. testified that he sought a loan on the 200 acres for the purpose of paying the $5,500; that lending agencies looked at the land, appraised it, and his application was meeting with approval until they asked him some questions. Unable to secure the loan, he paid nothing further on the contract. His cash payment of $1,250 was never returned to him.

S & N, by Forest T. Noel, President, executed a deed (dated December 15, 1944, acknowledged December 21, 1944, and recorded March 12, 1945) conveying the 200 acres to A. W.

Vincil stated his wife wanted to move to town. On June 3, 1944, they borrowed $1,500 on his 40 acres and made a $1,500 down payment on a home in Mexico. This left them owing $3,500, which was secured by a deed of trust on the town residence. Soon thereafter John Plybon contracted to buy the 40 acres and livestock thereon for $3,200 or $3,250, paying Vincil $300 or $400 earnest money. Vincil and his wife moved to their new home in September, 1944. On January 8, 1945, Plybon concluded his purchase, and Vincil deposited $2,872.50 to his credit in the Mexico Savings Bank, paid the $1,500 against the 40 acres, and on January 19, 1945, put $1,200 in his lock box at the bank, he stated, so he would not check it out but hold it for the purchase of a farm.

Vincil testified he sold his one-half interest in the 200 acres in March, 1944, because he was making a profit, and, having married, wanted to get away from the partnership and buy a larger farm of his own, as was his plan when he sold his 40 acres a few months later. His son was then one year old and he thought he could give him 'a little better chance' if he had a farm. When he learned the 200 acres was for sale, he purchased it because he thought it worth the money, 'a better buy that anything I could find,' had been his father's home place, and he more or less always wanted it.

Mrs. Vincil Mildred testified that her husband did the talking and negotiating for the 200 acres.

A. W. knew Vincil was looking for a farm, but he made no effort to sell his 200 acres to Vincil, stating he supposed Vincil did not want it. Vincil, more or less always wanting the 200 acres, did not talk to A. W. about buying because he assumed A. W. 'wasn't wanting to sell.' He learned about the first of 1945 from Stewart or Noel that he might buy the 200 acres. At that time he probably knew A. W. had sold to S & N. He started negotiating for it after Plybon paid him. Vincil knew A. W. had contracted to repurchase the 200 acres from S & N, had been unable to complete this purchase, and A. W. told him he was losing $1,250 about the time Vincil agreed to purchase from S & N. Vincil testified although he knew A. W. claimed he, A. W., was going to lose $1,250 when he, Vincil, agreed to buy from S & N, he didn't go into it with A. W. because 'I wasn't too interested about it'; 'that was his problem--it wasn't mine.' A. W. testified Vincil told him he had purchased the 200 acres about a month or two before Vincil settled for it.

Vincil's purchase of the 200 acres was consummated when a general warranty deed (subject to A. W.'s $3,000 deed of trust which the grantee assumed and agreed to pay) from S & N to 'A. W. Mildred, single and unmarried' (dated December 15, 1944, acknowledged December 21, 1944, as hereinbefore mentioned), and a like general warranty deed from 'A. W. Mildred, single and unmarried,' to 'Vincil Mildred and Mildred E. Mildred, husband and wife' (dated and acknowledged March 12, 1945) were filed for record at 11:20 and 11:25 a. m., respectively, on March 12, 1945. This transaction was closed at the Mexico Savings Bank, R. G. Stewart, Vincil and his wife, and A. W. being present. Vincil testified he there first learned that S & N had deeded the 200 acres to A. W. A. W. testified that Stewart called him to the bank; that he then...