Bank of Brimson v. Graham

• Decision Date: 16 November 1934
• Docket Number: 31828
• Parties: Bank of Brimson, a Corporation, Appellant, v. Rose Anna Graham, otherwise known as Katie Graham, Othel Graham and Samp Hughes
• Court: Missouri Supreme Court

76 S.W.2d 376

335 Mo. 1196

Bank of Brimson, a Corporation, Appellant, v. Rose Anna Graham, otherwise known as Katie Graham, Othel Graham and Samp Hughes

No. 31828

Supreme Court of Missouri

November 16, 1934

Rehearing Overruled November 16, 1934.

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

Affirmed.

Geo E. Woodruff for appellant.

(1) This matter is one in equity, triable de novo by this court, without the aid of any findings by the chancellor. Croft v. Morehead, 293 S.W. 405, 316 Mo 1213; Jamison v. Trust Co., 207 S.W. 788; Littick v. Means, 195 S.W. 729; Spindle v. Hyde, 152 S.W. 19, 247 Mo. 32; Pickel v. Pickel, 147 S.W. 1059, 243 Mo. 641; Gill v. Newhouse, 178 S.W. 495; Delo v. Johnson, 110 Mo.App. 642, 85 S.W. 109; Welch v. Mann, 92 S.W. 98, 193 Mo. 304. (2) The trial court erroneously held that the land was exempt and consequently a conveyance thereof could not be set aside as fraudulent. 11 R. C. L., sec. 1; Reiff v. Armour & Co., 79 Wash. 48, 139 P. 633, L. R. A. 1915A, 1201; 25 C. J., sec. 138; Steele v. Leonori, 28 Mo.App. 675; Osborne & Co. v. Evans, 185 Mo. 509, 84 S.W. 867; Casebolt v. Donaldson, 67 Mo. 308; State ex rel. v. Hull, 99 Mo.App. 703, 74 S.W. 888; Klotz v. Rhodes, 144 S.W. 791, 240 Mo. 499; Steele v. Reid, 223 S.W. 881; Merrell Drug Co. v. Dixon, 115 S.W. 179, 24 L. R. A. (N. S.) 1018; Martin v. Lamb, 200 N.W. 160; Refly v. Reynolds, 222 P. 121. (3) Here the purported consideration of the conveyance was admittedly fictitious. Where this fact exists, the entire conveyance is fraudulent even though a part of the consideration may be valuable and bona fide. 27 C. J., sec. 134; Mumford v. Sheldon, 9 S.W.2d 910; Klauber v. Schloss, 198 Mo. 514, 95 S.W. 930; Bishop v. Bishop, 228 S.W. 1065; Seger's Sons v. Thomas Bros., 107 Mo. 635, 18 S.W. 33; Aull v. Gaffin, 234 Mo. 171, 136 S.W. 342. (4) There need be no direct and positive evidence of fraud. Its existence can be determined from the facts and circumstances denominated "badges of fraud." St. Francis Mill Co. v. Sugg, 206 Mo. 157, 104 S.W. 45; Farmers' Bank v. Handly, 9 S.W.2d 880; Mumford v. Sheldon, 9 S.W.2d 907; Oldham v. Wade, 273 Mo. 231, 200 S.W. 1053; Bank v. Woelz, 197 Mo.App. 686, 193 S.W. 614; Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Robinson v. Dryden, 118 Mo. 534, 24 S.W. 448; Cole v. Cole, 231 Mo. 236, 132 S.W. 734; King v. Moon, 42 Mo. 551. (5) Where badges of fraud exist they make out a case or at least cast the burden on defendants to prove the bona fides of the transaction by clear, cogent, satisfactory and convincing evidence. 27 C. J., secs. 133, 715, 716, 717, 725; Howard v. Zwiegart, 197 S.W. 46; Miller v. Allen, 192 S.W. 967; Schraff v. McGaugh, 205 Mo. 344, 103 S.W. 550; State v. Smith, 31 Mo. 566; Starr v. Penfield, 148 S.W. 382, 166 Mo.App. 302; Vandeventer v. Goss, 116 Mo.App. 316, 91 S.W. 958; Hoffman v. Nolte, 127 Mo. 120, 29 S.W. 1006; Farwell v. Meyer, 67 Mo.App. 566; Mason v. Perkins, 180 Mo. 702, 79 S.W. 683; Snyder v. Free, 114 Mo. 360, 21 S.W. 847; Reid v. Lloyd, 52 Mo.App. 278; Bank v. Miller, 223 S.W. 908; Leeper v. Bates, 85 Mo. 224; Henderson v. Henderson, 55 Mo. 534; McDonald v. Rumer, 8 S.W.2d 592; Bank v. Kenny, 133 S.W. 855, 154 Mo.App. 285; Bank v. Woelz, 197 Mo.App. 686, 193 S.W. 614; Barber v. Nunn, 275 Mo. 565, 205 S.W. 14; 27 C. J., sec. 158; Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Robinson v. Dryden, 118 Mo. 534, 24 S.W. 448; Bank v. Miller, 223 S.W. 908; Phipps v. Markin, 203 Mo.App. 187, 208 S.W. 106; St. Francis Mill Co. v. Sugg, 206 Mo. 148, 104 S.W. 45; Bank v. Handly, 9 S.W.2d 880; Bishop v. Bishop, 228 S.W. 1065; Bank v. Leonard, 273 S.W. 723; Renny v. Williams, 89 Mo. 139, 1 S.W. 227; 27 C. J., sec. 146; Ward v. Stutzman, 212 S.W. 65; Wilson v. Salisbury, 167 Mo.App. 191, 151 S.W. 194; Benne v. Schnecko, 100 Mo. 250, 13 S.W. 82; 27 C. J., secs. 149, 155; Glenn v. Glenn, 17 Iowa 498; Moore v. Tearny, 57 S.E. 263, 62 W.Va. 72; Blue v. Penniston, 27 Mo. 272; Bank v. Buck, 123 Mo. 141, 27 S.W. 341; 27 C. J., sec. 140; Oldham v. Wade, 273 Mo. 231, 200 S.W. 1053; Childers v. Pickenpaugh, 219 Mo. 376, 118 S.W. 453; Gill v. Newhouse, 178 S.W. 495; Cole v. Cole, 231 Mo. 236, 132 S.W. 734; King v. Moon, 42 Mo. 551; Snell v. Harrison, 104 Mo. 158, 16 S.W. 152; Baldwin v. Whitcomb, 71 Mo. 651; State v. Merritt, 70 Mo. 275; State v. O'Neil, 151 Mo. 67, 52 S.W. 240; Mumford v. Sheldon, 9 S.W.2d 907; Gould v. Gibson, 180 Mo.App. 477, 166 S.W. 648; 27 C. J., secs. 155, 148; Goldshy v. Johnson, 82 Mo. 602.

E. M. Harber and Davis & Davis for respondents.

OPINION

Atwood, P. J.

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 defendant, Rose Anna Graham, to set aside a deed of trust covering forty acres of land described as the Northwest Quarter of the Southwest Quarter of Section 33, Township 61, Range 25, in Grundy County, Missouri, given by her to defendant Othel Graham as trustee for defendant Samp 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, defendant Rose 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 forty-acre tract of land here in question; that on March 23, 1927, she conveyed said land to defendant Othel Graham as trustee for defendant Samp Hughes to secure a purported note given to said Hughes in the purported amount of $ 1500; 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 canceled; that on said last named date said defendant, Rose Anna Graham, by her quitclaim deed of that date, conveyed the above described property to the aforesaid Samp Hughes for a purported consideration of $ 1505.00;" 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 lands;" 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 defendant Rose 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 meantime enjoined and restrained from disposing of said property or paying out any of the proceeds thereof, or in anywise interfering therewith and for such other and further relief as to the court may seem meet and just."

Defendant Othel Graham filed separate demurrer to plaintiff's petition which was overruled. Defendant Samp 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."

Defendant Rose 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,...