Black v. Epstein

Decision Date08 June 1909
Citation120 S.W. 754,221 Mo. 286
PartiesBLACK v. EPSTEIN et al.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Maurice H. Black against Simon Epstein and others. From a judgment for plaintiff, defendant Marcus Epstein appeals. Affirmed.

This action was begun on September 19, 1902, in the circuit court of the city of St. Louis, by Maurice H. Black against Simon Epstein, Frank Heimenz, and August Gehner. On November 4, 1903, an amended petition was filed by which Marcus Epstein was also made a party defendant. The object of the action is to set aside a deed of trust made by Simon Epstein on January 8, 1901, to August Gehner, as trustee, and Frank Heimenz as party of the third part, to secure a note of $30,000, made to said Heimenz, which said note and deed of trust were transferred to the defendant Marcus Epstein on the grounds, as alleged, that said deed of trust was made to hinder, delay, and defraud the plaintiff and other creditors of Simon Epstein, and to cover up and conceal the property of Simon Epstein from plaintiff and his other creditors. It is alleged that said deed of trust and the note of $30,000 secured thereby were wholly without consideration; that Simon Epstein was not indebted to Heimenz; and that the assignment and transfer of said deed of trust and note from Heimenz to Marcus Epstein were wholly without consideration, and made to hinder, delay, and defraud the plaintiff, and to prevent him from collecting a just claim against defendant Simon Epstein. It is also alleged that said deed of trust was conceived by Simon Epstein and Marcus Epstein for the purpose of covering up and concealing the ownership of the property of Simon Epstein, and to hinder, delay, and defraud the plaintiff. Plaintiff prayed that said deed of trust be declared null and void as to plaintiff, and that the real estate therein described be subjected to the lien of certain judgments of plaintiff obtained against said Simon Epstein. The answer was a general denial. Judgment was rendered for plaintiff in accordance with the prayer of the petition on September 28, 1904. From this judgment Marcus Epstein appealed to this court.

The evidence developed upon the trial was substantially as follows: On August 16, 1900, respondent Black commenced an action in the circuit court of the city of St. Louis against Simon Epstein which resulted in a judgment in favor of Black and against said Epstein on February 4, 1901, in the sum of $3,171.73, with interest thereon from date of judgment at 6 per cent. per annum. Afterwards Black began another action in said circuit court of the city of St. Louis against said Simon Epstein on another cause of action, which resulted in a judgment against said Epstein on June 20, 1902, in the sum of $3,490.56, with interest thereon from date of judgment at 6 per cent. per annum. At the time of rendering judgment in this cause said two judgments amounted, with interest, to $7,710.10. At the time of the commencement of the above-described two suits, Simon Epstein was the owner of the real estate described in respondent's petition. On the 8th day of January, 1901, Simon Epstein executed and delivered a deed of trust to August Gehner, as trustee, and Frank Heimenz, as party of the third part, which deed of trust was duly recorded in the office of the recorder of deeds in the city of St. Louis on January 12, 1901. Said deed of trust purported to secure a note of $30,000 made to said Heimenz, and embraced the real estate described in the petition. Immediately after said deed of trust and note were executed, they were assigned and transferred by Heimenz to Marcus Epstein. It is conceded that no consideration of any kind passed from Heimenz to Simon Epstein, or from Marcus Epstein to Heimenz. It is also conceded that, if there was any consideration moving the execution of said deed of trust and note, it consisted of past debts owing by Simon Epstein to Marcus Epstein. The said deed of trust embraced all the property of Simon Epstein, including personal property, and there remains no other property upon which executions might be levied or out of which said judgments could be satisfied.

Frank Heimenz testified that he was working for the Title Guaranty Trust Company when deed of trust was made; he had no recollection of the transaction. Simon Epstein did not owe him anything, nor was there any consideration passing from him to Simon Epstein, nor from Marcus Epstein to him, for the note and deed of trust. He indorsed the note without recourse — that was the usual way of doing business in the office.

August Gehner testified. He was trustee in the deed of trust, but does not remember the circumstances of making the deed. Thinks that deed of trust was made at the instance of the Epsteins. Says it was a habit in his office to make all the deeds of trust to Heimenz or himself as trustee. Epstein was not indebted to Heimenz. Says he was not directed by Epstein to make the deed of trust in the form it was made, but that Epstein always left such matters to him and he followed his usual custom. He thinks one of the Epsteins told him that Simon owed Marcus $30,000. He knew nothing of any contemplated fraud when he drew the deed as he did. The practice has been for a long time to make deeds of trust to Heimenz and have him indorse the notes without recourse. He had drawn many deeds of trust for Simon and Marcus Epstein, and had drawn them in the same way. He had been placing loans for them for 15 or 20 years. On a part of this property — that on the Clayton road — Simon Epstein had loaned $25,000, took a deed of trust, and bought it in at a sale; that is how he got title. Says he originally made the loan for Simon on the property; says he could not tell value of property without looking at it, but supposed it worth $35,000.

Simon Epstein testified that he was born in Bohemia in 1848; went to St. Louis in 1866, where he has lived on Sidney street ever since at No. 225. His older brother, Marcus, was already there. He picked rags for two...

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