Bangert v. Bangert

• Decision Date: 16 January 1883
• Citation: 13 Mo.App. 144
• Parties: JOHN BANGERT, PLAINTIFF, Appellant, v. HENRY BANGERT ET AL., DEFENDANTS, Appellants.
• Court: Missouri Court of Appeals

13 Mo.App. 144

JOHN BANGERT, PLAINTIFF, Appellant,

v.HENRY BANGERT ET AL., DEFENDANTS, Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 16, 1883.

APPEAL from St. Louis County Circuit Court, EDWARDS, J.

Reversed and remanded.

L. S. METCALFE, JR., and FRANKLIN FERRISS, for the plaintiff: A voluntary deed is fraudulent and void as to existing creditors, when made with intent to hinder, delay, or defraud such creditors.--Bump on Fr. Conv. 281; Potter v. McDowell, 31 Mo. 62. Evidence to create a resulting trust must be clear, strong, and unequivocal, and such as to leave no room for reasonable doubt. A mere preponderance of evidence will not do.-- Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Thomas v. Chicago, 55 Ill. 403. A husband by marriage acquires an absolute right to all the personal property in possession belonging to his wife at the time of the marriage, or which comes to her afterwards, not given for her sole and separate use.-- Woodford v. Stephens, 51 Mo. 443; Kidwell v. Kirkpatrick, 70 Mo. 216; Thomas v. Chicago, 55 Ill. 403; Terry v. Wilson, 63 Mo. 499; Bledsoe v. Simms, 53 Mo. 308. Land bought by a husband in his own name with his wife's money, but without any agreement that the purchase shall be for her sole and separate use, or that the title shall be taken in her name, will not be treated in equity as her property.-- Kidwell v. Kirkpatrick, 70 Mo. 215; Thomas v. Chicago, 55 Ill. 403. No resulting trust to a portion of land will arise in favor of any one who pays a part of the purchase-money, unless it be paid for some “aliquot” part of the land.-- Wheeler v. Kirtland, 23 N. J. Eq. 13; McGowan v. McGowan, 14 Gray, 121; Sayre v. Townsend, 15 Wend. 647; Olcott v. Bynum, 17 Wall. 44; Baker v. Vining, 30 Me. 121.W. H. CLOPTON, for the defendant: An unauthorized arrangement by a husband will not deprive the wife of her property.-- Eystra v. Capelle, 61 Mo. 578; Goldsall v. Chicago National Bank, No.--Mo. App. The wife cannot be affected by estoppel. She did not know the deed was made to her husband.-- Acton v. Lynch, 14 Cent. L. J., No. 8; Big. on Estop. 486; Murray v. Fox, 11 Mo. 555; Hall v. Callahan, 66 Mo. 316; Watson v. St. Louis Smelting Co., 8 Mo. App. 604; Suman v. Springate, 67 Ind. 115. The deeds from Henry Bangert to Benne and from Benne to trustee of wife, were regular on their face. Plaintiff must prove affirmatively that they were fraudulent.-- Gutzweiller v. Lackman, 39 Mo. 91; Forrester v. Scoville, 51 Mo. 268. Fraud will never be presumed where all the facts consist as well with honesty and fair dealing.-- Anus v. Gilmore, 59 Mo. 537; Payne v. Stanton, 50 Mo. 158; Henderson v. Henderson, 55 Mo. 534; Rumbold v. Pan, 51 Mo. 92. Plaintiff bought subject to the equities of the wife and children. He had full notice.-- Major v. Bulkley, 51 Mo. 227. There is no proof that Henry Bangert reduced any of the money or notes belonging or due to his wife into possession.-- Tunnison v. Tunnison, 46 Mo. 77; Carr v. Carr, 1 Md. 453. After 1875 he could not reduce her choses in action into possession without her consent in writing.--Rev. Stats. 560, sect. 3296.

BAKEWELL, J., delivered the opinion of the court.

This is an action by a creditor of defendant Henry Bangert, to set aside a conveyance of the latter, as being made in fraud of creditors. There is also a count in ejectment. The parties defendant are Henry Bangert and his wife, William Benne, to whom Bangert and wife conveyed the property in question, and Herman Benne, to whom William Benne conveyed the property upon certain trusts. After a general denial, these defendants set up, that Henry Bangert purchased the land with money belonging to his wife and her children; that he never had any beneficial interest in the land, and that the deeds to the Bennes were made to carry out and fully declare the trusts upon which Bangert held the land.

The trial court found the deed fraudulent,--that the money with which it was purchased belonged, one-fifth to Henry Bangert, one-fourth to his wife, one-fourth to her son Henry, and three-tenths to her other three children, one-tenth to each. The court decreed that the title to the land be vested as to one-fifth in plaintiff, and that he is entitled to possession of one-fifth; as to one-fourth in defendant Charlotte Bangert; as to one-fourth, in Henry Tieman; as to one-tenth, in Caroline Tieman; as to one-tenth, in Fredericka Tieman; as to one-tenth, in Emmeline Tieman. These Tiemans were children of defendant Charlotte, and were not parties to this action.

Both plaintiff and defendants appeal.

It appears from the evidence that, in March, 1870, defendant Henry Bangert being indebted to his uncle, the plaintiff, for money borrowed of him, together with one Frederick Bangert, executed to plaintiff a promissory note on which plaintiff obtained judgment against defendant Henry, on June 12, 1879, for $1,091.35. Execution issued on this judgment, was levied upon all the interest of defendant Henry in the land in controversy, and plaintiff became the purchaser at the execution sale. At the time Henry Bangert executed this note, he had no property. In the spring of 1873, Henry Bangert married the defendant Charlotte, who was the widow of one Henry Tieman. Tieman, by his will, left $1,000 to his son Henry Tieman, to be paid to him, with accrued interest, twenty years after the date of the will, which was executed in March, 1872. To his other children he left $400 each, to be paid to them with interest, at their majority. His farm he left to his wife, to hold for twenty years from the date of the will, then to be divided between her children in fee. Tieman left four children by his wife Charlotte, all surviving at the date of this suit. At the time of her marriage to defendant Henry, Charlotte Tieman was living with her children on this farm. When defendant Henry married her, he had $80, and no other property. One child was born of this marriage. By the will, Charlotte was charged with the expense of educating and maintaining the children, in consideration of the use of the farm. The records of the probate court show, that Henry Bangert became administrator de bonis non of Tieman, and that he reported $2,589 on hand in August, 1875, in cash. In March, 1877, he was ordered to pay legacies to himself as curator of the children of Tieman. Plaintiff testified that he believed that defendant Henry made the money with which he purchased the farm in question out of the farm of his wife, by working on it.

The following deeds to the property in question, which is a farm of fifty acres, were introduced:--

Deed from William Frenz to Henry Bangert, dated January 19, 1876, recorded March 13, 1876; consideration, $1,650.

Deed from Henry Bangert and wife to William Benne, dated April 4, 1879, recorded April 28, 1879; consideration, $2,000.

Deed from William Benne and wife to Herman Benne, dated May 27, 1879, recorded June 5, 1879; consideration, $2,500; habendum, in trust for the sole and separate use of Charlotte, wife of Henry Bangert, and her heirs and assigns.

Deed from the sheriff to John Bangert, dated September 24, 1879; consideration, $1.

The witnesses examined were the plaintiff and Benne the trustee, for the plaintiff, and the defendants Henry and Charlotte, on their own behalf. The witnesses seem to be uneducated people; they have kept no accounts or memoranda; they have no certainty as to dates and amounts; and defendant and his wife seem often not to have understood the questions put to them, as the most contradictory statements are made by each of them, and Henry Bangert, especially, answers “yes” and “no” to the same question, almost in one breath. This makes it difficult to summarize the testimony.

John Bangert, the plaintiff, testified to a conversation with defendant in which defendant admitted that he owed the money, and begged for time; and to another conversation, after the deed to Benne was executed, in which defendant said that he would not pay; that he had “made it so” that plaintiff could get nothing at all now; and to other conversations which seem to have no particular bearing upon the case. Defendant told him that the children's money was loaned out, but the witness cannot say whether this was said before or after the marriage.

William Benne, the trustee, testified that the deed from defendant to him was made without consideration.

Defendant Henry Bangert's testimony is largely made up of answers to questions, many of which he appears not to understand. He says that, when he married Catherine Tieman, there was on the farm about fifteen hundred bushels of corn and twenty tons of hay, twelve head of cattle, four horses, and twenty hogs, and that she had then $1,000 in money. He and his wife both worked on the place since his marriage. To buy the land in controversy, which he calls “the Frenz place,” he used about $1,600 of administration money; some of his wife's money, and some that they made on the place. When he married her, her money was loaned out. She knows how much it was, but he don't. He told John Bangert that he could not give him money, because his wife would object. The money of his wife used in the purchase of the Frenz place was made on the Tieman farm. Fifty-six hundred dollars was paid for the Frenz place. On cross-examination, he said that he saw his wife's money when he married her. Some of it was then loaned out to Penningworth, the former administrator of her husband's estate. Witness could not say where her money was when he married her. She had it. Witness did not see it all. Witness saw some of it in the house. When it was in the house she had it kept in a drawer. Sometimes witness took it. Never took it from drawer to use it. If witness went to St. Louis and wanted spending money, he could take it, but not without her knowledge. It was under lock and key most of the time. Witness could not always go to the drawer and take it, because his wife claimed it. Witness...