Bank of Pocahontas v. Miller

• Decision Date: 19 July 1920
• Docket Number: No. 21249.,21249.
• Citation: 223 S.W. 908
• Parties: BANK OF POCAHONTAS v. MILLER et al.
• Court: Missouri Supreme Court

223 S.W. 908

BANK OF POCAHONTAS v. MILLER et al.

No. 21249.

Supreme Court of Missouri, Division No. 1.

July 19, 1920.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Suit by the Bank of Pocahontas against Charles B. Miller and others to set aside a conveyance as fraudulent. From judgment for defendants, plaintiff appealed to the Court of Appeals, which transferred the case. Reversed and remanded for new trial.

Albert M. Spradling, of Cape Girardeau, for appellant.

Harry E. Alexander, of Cape Girardeau, for respondents.

BROWN, C.

This cause comes to us by transfer from the St. Louis Court of Appeals on the ground that it involves the title to the real estate described in the petition. 204 S. W. 817. The petition, omitting the caption and introduction, is as follows:

"Plaintiff states that it is a banking corporation duly organized and existing under the laws of the state of Missouri, and that Charles B. Miller and Carrie D. Miller were, at all times hereinafter mentioned, husband and wife, and that Helen Miller and Lucile Miller are their daughters, and minors.

"Plaintiff states that on the 1st day of June, 1914, it recovered a judgment against the defendant Charles B. Miller, in the Cape Girardeau court of common pleas, in the county of Cape Girardeau, for the sum of $1,194.64, on a note dated the 3d day of March, 1911, for the sum of $1,000, with interest at the rate of 8 per cent. per annum, and indorsed by the defendant Charles B. Miller, and $27.25 for its costs; that execution was duly issued on said judgment, returnable to the November term of said court, which said execution was returned partially satisfied by the payment of $100; and that after said return, plaintiff paid all the costs of said suit and execution, to wit, $27.25, and the remainder of said judgment and costs now remains due and unpaid.

"Plaintiff states that the defendant Charles B. Miller, with a view and with intent to hinder, delay and defraud his creditors, and among others this plaintiff, did, on the 19th day of July, 1911, execute a certain deed of conveyance of that date, whereby he conveyed to the defendants Helen Miller and Lucile Miller, his daughters, the following described real estate, situated in the county of Cape Girardeau and state of Missouri, to wit:

"The southwest quarter of the southwest quarter of section 3; the southeast quarter of the southeast quarter of section 4; the northwest quarter of section 9; the west half of the northwest quarter of section 10, all in township 32 north, range 14 east, also a strip 100 feet wide fronting on the Frisco Railroad in section 11, township 32, range 14 east, and more particularly described in a deed from St. Louis Union Trust Company to Charles E. Miller; and that the pretended consideration for said conveyance and the amount stated in said deed as the consideration thereof is one dollar.

"Plaintiff further states that in truth no consideration passed from the said Helen Miller and Lucile Miller to the said Charles B. Miller, but that said conveyance was a voluntary one and without consideration, and made, as above stated, for the purpose of hindering, delaying and defrauding the creditors of the said Charles B. Miller, of which purpose said defendants, Helen Miller and Lucile Miller, were fully cognizant at the time such conveyance was made.

"Plaintiff further states that said defendant, Charles B. Miller, has no other property out of which the judgment and execution aforesaid can be satisfied in whole or in part, and that unless the property so fraudulently conveyed to defendants Helen Miller and Lucile Miller can be reached and applied to the payment of the said judgment, the same must remain wholly unpaid. Plaintiff states that it has no adequate remedy at law.

"Wherefore, plaintiff prays for a decree that the said conveyance be adjudged fraudulent and void as against plaintiff; that the same be set aside and for naught held; that the property therein mentioned be ordered to be sold for the satisfaction of the said judgment of 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 any wise interfering therewith, and for such other and further relief as to the court may seem meet and just."

At the April term, 1915, to which the cause was returnable, the defendant Charles B. Miller answered by general denial, as did also the defendants Helen Miller and Lucile Miller through H. E. Alexander, their guardian ad litem, at the following August term. The cause came on for trial at the August term, and plaintiff introduced evidence showing that on the 3d day of March, 1911, C. H. Bond and Bertha Bond made and executed their negotiable promissory note, whereby they promised for value received to pay to the order of J. B. Miller, in three years after date, the sum of $1,000. Thereafter this note was indorsed by the payee, J. B. Miller, and the defendant C. B. Miller, and delivered to this plaintiff on the 30th day of March, 1911.

Plaintiff brought suit on the note and obtained judgment for the sum of $1,194.64 against the defendants at the May term, 1914, of the Cape Girardeau court of common pleas. On the 10th day of November, 1914, the sheriff of Cape Girardeau county returned the execution issued on said judgment partially satisfied by a payment in the sum of $100.

On the 19th day of July, 1911, the defendants Charles B. Miller and Carrie D. Miller, his wife, executed to their daughters, Helen Miller and Lucile Miller, a warranty deed in which they conveyed all of the land described in the petition for the consideration of one dollar. That the said conveyance to his daughters rendered Charles B. Miller insolvent. He owed several banks mentioned in the testimony $4,623.82 and had on deposit in one of them about $3,800, all of which he took out within a few days.

At the close of plaintiff's evidence by which the foregoing facts were shown, the defendants asked the court to declare that upon the pleadings and evidence the judgment should be for the defendants, which it did, and rendered judgment accordingly, and...