Baumann v. Horn
| Decision Date | 04 June 1918 |
| Citation | 204 S.W. 53,199 Mo.App. 555 |
| Parties | FELIX L. BAUMANN, Appellant, v. CHARLES W. HORN, Trustee, LILLIE L. HORN, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon William M. Kinsey, Judge.
AFFIRMED.
Judgment affirmed.
R. M Nichols and M. A. Haldeman for appellant.
(1) The bill of sale was admissible in evidence because it is specially provided for by statute. R. S. 1909, secs. 2227 and 2230. (2) The duties of a constable are the same as the duties of a sheriff, and the "General Code" is made applicable to justices of the peace and constables. R. S 1909, secs. 2201, 2202, 2224, 2247, 2248, 2249; Stegall v. Pigment & Chemical Co., 150 Mo.App. 285; Huhn v Lang, 122 Mo. 606; Swallow v. Duncan, 18 Mo.App. 629. (3) The statute specially declares an execution of a justice of a peace to be a lien upon shares of stock of a corporation. R. S. 1909, sec. 7546. (4) If the court subsequently ruled out the bill of sale on the objection made, viz., "on the ground that the bill of sale, standing alone, is no evidence," then the court should have granted a new trial to enable plaintiff to produce other evidence. (5) The objection to the introduction of the bill of sale was general, "on the ground that the bill of sale, standing alone, is no evidence" (Rec., p. 17). As against such general objection, if there could be any informality in it which is not admitted, the bill of sale was clearly admissible. Failure to state any specific objection to the bill of sale is a waiver. Vanstone v. Goodwin, 42 Mo.App. 47; 10 Cyc, p. 366; Hannibal, etc., R. Co. v. Moore, 37 Mo. 338; Bogie v. Nolan, 96 Mo. 85; Babb v. Curators, Etc., 40 Mo.App. 173; Peck v. Chouteau, 91 Mo. 138; Davis v. Hilton, 17 Mo.App. 319; Parsons v. Railroad, 94 Mo. 292. (6) The bill of sale at least made out a prima-facie case for plaintiff of the sale and all the facts therein stated. If defendant Lillie L. Horn, or any of the other defendants, desired to question the right of the officers of the justice court to make the sale of the stock, it was their duty to take proper legal steps to stop the sale by direct action, after the advertisement of the sale was started by the officers of the justice court, or to have claimed the property by way of exemption, or otherwise, if Lillie L. Horn had any right of exemption. Having failed to take such action, defendants are now concluded by the recitals in the bill of sale. Defendants had full knowledge of every step taken in the justice court, because Lillie L. Horn filed a mere general denial in this case, showing that she was unable to plead a single irregularity in the sale. Scharff v. McGough, 205 Mo. 358 Jordan v. Surghnor, 107 Mo. 524; Huxley v. Harrold, 62 Mo. 516; Baird v. St. Louis Hospital Assn., 116 Mo. 419; Samuels v. Shelton, 48 Mo. 444; Pattee v. Thomas, 58 Mo. 164; McCormick v. Fitzmorris 39 Mo. 24; Kendall, etc., v. Bain, 46 Mo.App. 581; Halderman v. Stillington 63 Mo.App. 212; Sharp v. Sturgeon, 66 Mo.App. 191; Brown v. Loos, 66 Mo.App. 211; Cousins v. Bowling, 100 Mo. App 168; Bobb v. Graham, 15 Mo.App. 289; Evans v. Robberson, 92 Mo. 192. (7) Defendants were not en titled to show in this proceeding, if they could, that there was any irregularity or informality in the proceedings in the justice court, because this would amount to a collateral attack on said proceedings, which is not permitted; besides, the proceedings of an inferior court will not be disturbed for mere errors or irregularities; furthermore, no attempt was made to question any of the proceedings in the justice court. But no such showing could have been made under a general denial, such as filed by Lillie L. Horn. Lumber Co. v. Carroll, 255 Mo. 367; Lovett v. Russell, 138 Mo. 482; Abels v. Webb, 186 Mo. 233; Lingo v. Burford, 112 Mo. 149; Union Depot Co. v. Frederick, 117 Mo. 138; Hardin v. McCanse, 53 Mo. 255; Brecht v. Corby, 7 Mo.App. 304. (8) A voluntary conveyance by a husband to his wife will be closely scrutinized when the same comes in conflict with creditors, and a transfer of property to avoid creditors is void as to such creditors. The evidence of five witnesses shows that Mrs. Horn had full knowledge of the large indebtedness of her husband. Cole v. Cole, 231 Mo. 237; Zehnder v. Stark, 248 Mo. 46; Snyder v. Free, 114 Mo. 360; Bracken v. Milner, 99 Mo.App. 191; Hoffman v. Nolte, 127 Mo. 120; Balz v. Nelson, 171 Mo. 682; Bank v. Winn, 132 Mo. 87; Farwell v. Meyer, 67 Mo.App. 566; Scharff v. McGaugh. 205 Mo. 364; Benne v. Schnecko, 100 Mo. 256; Loehr v. Murphy, 45 Mo. App' 524; Kennish v: Safford. 193 Mo.App. 362. (9) Three conditions must concur to protect the title of a purchaser where fraud is charged: (1) He must buy without notice of the bad intent on the part of the vendor; (2) he must be a purchaser for a valuable consideration. (3) He must be paid the purchase money before he had notice of the fraud. No defense that Lillie L. Horn acquired the stock as an innocent purchaser in good faith and without knowledge of the insolvency of her husband could be made under a general denial such as filed by Mrs. Horn, and the court had no right to consider in her behalf these elements or resolve them in her favor in the state of the pleadings and evidence. Such defenses must be specially pleaded. Dougherty v. Cooper, 77 Mo. 528; Check v. Waldron, 39 Mo.App. 21; Holdsworth v. Shannon, 113 Mo. 524; Garrett v. Wagner, 125 Mo. 464; Keiser v. Gammon, 95 Mo. 217; Hoffman v. Nolte, 127 Mo. 135 (and cases cited); Leavitt v. La Force, 71 Mo. 356. (10) Failure of a party against whom fraud is charged to produce as witnesses persons who are alleged to have participated in the fraud, and who are within reach, will raise a presumption in favor of the charge. Chas. W. Horn, although in court at the trial of the case did not testify. Stephenson v. Kilpatrick. 166 Mo. 263; Summers v. Keller, 152 Mo.App. 639 (and cases cited); Mabary v. McClung, 74 Mo. 575; Union Bank v. Stone, 50 Me. 595; 79 Am. Dec. 631. (11) Where fraud is charged in putting away property to hinder, delay or defraud creditors, there is no right of exemption in such property; besides such defense to be available must be specially pleaded and could not be made under a general denial, as was filed by Mrs. Horn. Also inadequacy of consideration and innocent purchaser must be specially plead in order to take advantage thereof. Neither such defenses, however, could be made in a collateral attack. Holdsworth v. Shannon, 113 Mo. 524; Keiser v. Gammon, 95 Mo. 217; Garrett v. Wagner, 125 Mo. 464; Lumber Co. v. Carroll. 255 Mo. 361; Brown v. Chaney, 256 Mo. 225; Bobb v. Graham, 15 Mo.App. 289. (12) A party is at liberty to discredit a witness whom he is compelled to call, or what is known in the law as a compulsory witness. The facts and circumstances surrounding the transfer of the shares of stock were entirely in the breast of the defendants; and for this reason the court will disregard statements of Mrs. Horn in her testimony contrary to common sense or the usual experiences of mankind in similar circumstances, will bear in mind her interest in the outcome of the case, and will resolve most favorably any admissions against her interests in favor of plaintiff's case. As shown by the decided cases intent to defraud is usually not susceptible of direct proof, but must be deduced from circumstances tending to prove such intent. The rule does not apply where fraud is charged. 40 Cyc, p. 2560; Maginnis v. Railroad, 268 Mo. 675; Diffenderfer v. Scott, 5 Ind.App. 243, 32 N.E. 87; State v. Stock, 69 Vt. 486; Smith v. Utesch, 85 Io. 381; 52 N.W. 343; Dennett v. Dow, 17 Me. 19; Whitman v. Morey, 63 N.H. 448, 2 A. 899; Hart v. Burns, 4 Pa. L. J. Rep. 337; 21 L. R. A. 422; Cole v. Cole, 231 Mo. 237. (13) Lillie Horn, however, introduced no testimony, and under her pleading she is precluded from any defense of innocent purchaser, for the reason that such defense must be specially pleaded and proved and cannot be shown under a general denial. Cole v. Cole, supra; Hoffman v. Nolte, supra; Snyder v. Tree, supra; Holdsworth v. Shannon, 113 Mo. 524; Keiser v. Gammon, 95 Mo. 218; See cases cited under point 5. (14) The alleged advances from Mrs. Horn to her husband were made long prior to the transfer of the stock. She will not now be permitted to absorb all of Horn's estate when creditors intervene. Creditors, extending credit on commercial obligations, have a right to assume that property appearing to belong to a debtor when they extend credit will be liable for their debts, and it is a fraud upon their rights to have debtor, while insolvent, under the facts and circumstances shown by this record, transfer all of his tanglible assets to his wife to cover alleged antecedent debts. Scharff v. McGaugh, 205 Mo. 364; Benne v. Schnecko, 100 Mo. 256; Balz v. Nelson, 171 Mo. 682; Johnson v. Grayson, 230 Mo. 380; Loewen v. Forsee, 137 Mo. 29; Conrad v. Fisher, 37 Mo.App. 356 (syllabus 25). (15) The question of ownership of the stock was settled by the judgment and order of distribution of the probate court. Rottman v. Schmucker, 94 Mo. 139; Covington v. Chamblin, 156 Mo. 574; Sheetz v. Kirtley, 62 Mo. 417.
Buder & Buder for respondent.
(1) Unless matters of exception are brought to the attention of the trial court by a motion for new trial, and preserved in a bill of exceptions, they cannot be considered on appeal. Hamman v. Coal Corporation, 156 Mo. 232; Keaton v. Keaton, 74 Mo.App. 174; Lorts v. Wash, 175 Mo. 487. (2) The recitals in bills of sale made by constables are not prima-facie evidence of the facts related, under the common law, and our statute does not make them such. 10 Ruling Case Law, Executions, sec. 150; Freeman on Executions sec. 106; Clem v....
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