Bank of Brimson v. Graham

• Decision Date: 18 September 1934
• Docket Number: No. 31828.,31828.
• Citation: 76 S.W.2d 376
• Parties: BANK OF BRIMSON v. GRAHAM et al.
• Court: Missouri Supreme Court

76 S.W.2d 376

BANK OF BRIMSON v.GRAHAM et al.

No. 31828.

Supreme Court of Missouri, Division No. 1.

September 18, 1934.

Rehearing Overruled November 16, 1934.

Appeal from Circuit Court, Mercer County; A. G. Knight, Judge.

Suit by the Bank of Brimson, a corporation, against Rose Anna Graham, otherwise known as Katie Graham, and others.From a judgment for defendants, plaintiff appealed to the Court of Appeals, which transferred the case to the Supreme Court.

Affirmed.

Geo. E. Woodruff, of Trenton, for appellant.

E. M. Harber, of Trenton, and Davis & Davis, of Chillicothe, for respondents.

ATWOOD, Presiding Judge.

This appeal was transferred here from the Kansas City Court of Appeals because title to real estate is involved.It grows out of a suit in equity by the Bank of Brimson, a creditor of defendantRose Anna Graham to set aside a deed of trust covering 40 acres of land described as the northwest quarter of the southwest quarter of section 33, township 61, range 25, in Grundy county, Mo., given by her to defendantOthel Graham as trustee for defendantSamp Hughes as beneficiary, and a quitclaim deed thereto given by her to Samp Hughes in satisfaction thereof.

The variety of contentions made by the respective parties on this appeal necessitates a comprehensive statement of the pleadings.

In its petition plaintiff alleges that it is, and at all times necessary for the purposes of this action has been, a corporation duly organized and existing under and by virtue of the laws of this state, with capacity to sue and be sued therein and doing a general banking business; that "on March 23, 1927 and prior thereto, defendantRose Anna Graham or Katie Graham was indebted to the plaintiff as evidenced by her certain promissory note dated December 18, 1926, in the amount of $691.58 bearing interest at the rate of 8% per centum per annum from date; that said indebtedness, together with the interest accrued thereon and an attorney's fee duly incurred, was reduced to judgment in the Circuit Court of Grundy County, Missouri, by judgment duly entered June 12th, 1929 in the amount of $824.95"; that on March 23, 1927, and while so indebted to plaintiff and at the time said indebtedness was incurred, she was the owner of the 40-acre tract of land here in question; that on March 23, 1927, she conveyed said land to defendantOthel Graham as trustee for defendantSamp Hughes to secure a purported note given to said Hughes in the purported amount of $1,500; that the said Samp Hughes is the brother of the said Rose Anna Hughes; that "on October 25, 1927 said deed was released of record by entry on the margin thereof and said purported note secured thereby produced and cancelled; that on said last named date said Defendant, Rose Anna Graham, by her quit claim deed of that date, conveyed the above described property to the aforesaid Samp Hughes for a purported consideration of $1,505.00"; that "on April 20, 1928 and to secure an extension of time on her obligation aforesaid to this plaintiff, defendant, Rose Anna Graham, falsely and fraudulently represented to this plaintiff that she was at that date still the owner of the above described land"; that "all of the above conveyances were without consideration in truth and in fact and that nothing of value was given therefor or passed between the parties but were purely voluntary in character and were made, executed, delivered and accepted, with the intent of all of the parties thereto, of knowingly, intentionally and fraudulently of hindering, delaying and defrauding the creditors, present and future, of said Rose Anna Graham, and especially this plaintiff in the collection of the debt herein referred to of which all the parties to said conveyance had knowledge at the time said conveyances were made and in which intent to hinder, delay and defraud this plaintiff all of the defendants joined, aided and abetted" that "said defendantRose Anna Graham is otherwise insolvent and has no other property out of which the aforesaid judgment can be satisfied in whole or in part and that unless the property so fraudulently conveyed can be reached and applied to said judgment and the payment thereof, said judgment will and must remain wholly unpaid."Plaintiff further stated that it had no adequate remedy at law, and prayed "for a decree adjudging that said conveyances be declared fraudulent and void as to this plaintiff; that the same be set aside and for naught held; that the property therein mentioned be held subject to the lien of plaintiff's judgment herein described and be ordered sold for the satisfaction of the said judgment of the plaintiff and that defendants be in the mean time enjoined and restrained from disposing of said property or paying out any of the proceeds thereof, or in any wise interfering therewith and for such other and further relief as to the court may seem meet and just."

DefendantOthel Graham filed separate demurrer to plaintiff's petition, which was overruled.DefendantSamp Hughes filed separate answer in the nature of a general denial, except that he admitted that "Rose Anna Graham made him a deed of trust on said premises as in said petition stated and afterwards in satisfaction of said deed of trust made to him a deed to said premises," and further alleged "that he paid full value and more for said premises and is the rightful and legal owner thereof."

DefendantRose Anna Graham filed separate answer, in which she admitted that plaintiff is, and was at all dates herein mentioned, a banking corporation; that in connection with and as security for her son, J. Claire Graham, she executed, on or about December 18, 1926, a note to plaintiff bank in the sum of $691.58, and "that judgment was obtained against her upon said note but for an amount greatly in excess of said note, interest and attorney fees to which plaintiff was entitled."

Further answering, this defendant said:

"That on the 6th day of February 1919 there was conveyed to her and to her then husband, Tyra Graham as tenants by entirety the following lands, i. e.: The North one-half of the Southwest one-fourth of Section 33, Township 61, Range 25, Grundy County, Missouri.

"That at the time and date of such conveyance to her and her husband and as and for a part of the purchase price thereof this defendant and her said husband executed to the Grantor therein, James F. Call, a deed of trust on the whole of said lands (80 acres) for the sum of $4,800 with 7% interest from date, which was indeed the full value of said lands.

"That this defendant at the time of said conveyance by said Call to herself and husband, with her said husband, took possession of said lands as their homestead and with their family, a minor daughter, Letha, age 10 years, occupied the same as homestead until the death of defendant's said husband which occurred June 25, 1925.Said lands and all thereof at no time being of value in excess of said mortgage.

"That on June 25th, 1925, upon death of said defendant's husband, the entire title of said lands subject to said mortgage upon which there was then due over $4,900, she conveyed to said Call, the owner of said deed of trust, the Northeast one-half of the North one-half of the Southwest one-fourth of said lands for and in consideration of said Call releasing $4,000 of said indebtedness and deed of trust of herself and deceased husband, thus leaving the remainder of said lands, i. e. the NW¼ of SW¼ containing 40 acres in Grundy County, Mo., subject to remainder of said debt and deed of trust, to said Call the same at said time amounting to $1000 and more upon last described lands, which at said time was and is full value thereof.

"That at all the dates and times herein mentioned, since the death of her husband, June 25, 1925, defendant was and is the head of a family consisting of herself and said infant daughter, and she and her husband were heads of families at the time and for years prior to his death and defendant has and does so continue as such head of a family, her said infant daughter residing with and being solely dependent upon her for support and maintenance.

"That at the time of the death of defendant's husband he had and for about 10 years prior thereto had carried a policy of insurance upon his life and at his death payable to defendant in the sum of $2,000.00 in the Bankers Life Insurance Company of Des Moines, Iowa, an assessment and beneficiary company doing business in the State of Missouri, the premiums and payments thereon being not over $50.00 per annum, and a short time after the death of her husband the amount due on this policy $2,037.00 was paid defendant; that this was the only property, money, or valuables defendant then or since has had except possible $50.00 worth of household goods.

"That with a thousand dollars and a little more of this insurance money so received by her, she paid said remaining mortgage on lands last above described in September, 1925 and caused said mortgage to be released of record, and with other of insurance money she paid funeral expenses, debts, and obligations of her deceased husband a number of which defendant alleges and avers she was not legally obligated to use said insurance money in payment of discharge of.

"That at no time was defendant seized of property mentioned or specified in section 1611, R. S. 1919[Mo. St.Ann. § 1160, p. 1422] exempt when owned by the head of a family as she is and was at all times mentioned in plaintiff's petition and so defendant says that while her brotherSam Hughes paid and advanced to her the full value and more of said 40 acres of land she had, under the circumstances and by reason of the facts aforesaid a perfect right to sell, give away or dispose of said lands as she saw fit and this too without giving plaintiff any right, in equity or otherwise to complain thereof or for relief sought or any relief whatever and hence defendant prays plaintiff's petition be dismissed...