Brennecke v. Riemann

• Decision Date: 17 March 1937
• Docket Number: 34411
• Citation: 102 S.W.2d 874
• Parties: BRENNECKE v. RIEMANN et al
• Court: Missouri Supreme Court

102 S.W.2d 874

BRENNECKE v. RIEMANN et al

No. 34411

Supreme Court of Missouri, First Division

March 17, 1937

David B. Hays, of Jackson, for appellant.

Rush H Limbaugh, of Cape Girardeau, for respondents.

OPINION

HYDE Commissioner.

This is an action in equity to set aside a deed to real estate in the city of Cape Girardeau on the ground that the conveyance was fraudulent as against creditors. The trial court found that the conveyance was made to pay a debt and was not fraudulent. Judgment was entered dismissing plaintiff's petition, and she has appealed therefrom.

This appeal was granted to the St. Louis Court of Appeals, but that court has properly transferred the case here, because title to real estate is involved. Plaintiff is a judgment creditor of defendant H. A. Riemann in the amount of $ 634.44; the principal and interest on a $ 500 note signed by Riemann, with his son, for money loaned in 1929. The property sought to be reached was conveyed to his daughter, defendant Anna Schrader, and is lot 2, block 3, Stockton's addition, a residence property in Cape Girardeau. Riemann acquired it in 1921 and it was his homestead from and after that date. Its reasonable market value was estimated at from $ 2,750 to $ 3,500 by plaintiff's witnesses, but one of them said 'if it just had to be sold it might not bring $ 1,500, because nobody is buying.'

Plaintiff's evidence showed that a letter to Riemann demanding payment of the note had been written by the cashier of a bank, which held it for collection, two days before the conveyance was made to Mrs. Schrader; and that plaintiff's son had also made a personal demand for payment of the note (then past due) several months before this letter was written. It was admitted that Riemann was insolvent at the time of the conveyance and had been for some time prior thereto; and that at that time he owed debts to two other persons in the total amount of $ 300. Hed been a farmer, but sold his farm after moving to Cape Girardeau. He did not receive all of the sale price at one time, and apparently used this money to live on and to pay other obligations. He was 74 years of age at the time of the trial; his wife was 66.

Most of the evidence comes from defendant's witnesses. Defendant Anna Schrader testified that conveyance was made to her by her father in payment of a $ 2,500 note, and the interest thereon since 1921 at 6 per cent. She said that she began teaching school in 1910, when 17; that in 1915 she loaned him $ 550 out of her savings, for which he gave her a note with interest at 6 per cent.; that in 1918 she loaned him $ 500 more and he gave her a note for that amount, also with 6 per cent. interest; that, in 1918, she was employed as a bookkeeper in Cape Girardeau at a salary of $ 100 a month and in 1919 loaned her father $ 650 more; that she took a note for that amount drawing 6 per cent. interest; that when her father bought the house in Cape Girardeau she loaned him $ 435 to buy furniture, drapings, carpets, and rugs; that at that time, he gave her his new note for $ 2,500 for this loan and his old notes with simple interest accrued thereon; and that then she turned over all the old notes she had and they were destroyed. She said it was the understanding at the time 'that the home place should secure this note'; and that it would be at some time conveyed to her; that she 'didn't make any demand for it'; and that they 'put off from time to time making the transfer of the property'; but that it continued to be agreed it would be done. She was married in the fall after her parents moved to Cape Girardeau and the $ 2,500 note was kept by her husband in his safety deposit box.

As to how the deed happened to be made on January 9, 1933, it was said that the members of the family were together at the Riemann home on the preceding Christmas Day; that Mr. Riemann was worried and told them that his taxes had not been paid for two years and the building and loan company was pushing him on a mortgage on an adjoining residence, owned by him and his wife as an estate in entirety; that his two sons-in-law (Arthur Schrader and W. C. Miller) then agreed to take this adjoining property over for the indebtedness against it (that transaction is not involved in this suit); and that at the same time it was agreed that he would convey the home residence to Mrs. Schrader for her note. This conveyance was not completed until January 9th, at which time Mrs. Schrader gave her father the $ 2,500 note. He said it was then destroyed, but he also said it was misplaced and that he had 'tried to find it.' The deed recited that the consideration was 'one dollar.' Defendant Anna Schrader said she did not know much about writing deeds and did not know what consideration was to be put in it until after it was written. When she saw it stated 'one dollar' she said she 'thought it was a matter of custom.' Mr. Miller, the other son-in-law, said he took charge of having both deeds written and executed; that he took the old deeds for the necessary information to a notary, who had an office near his place of business; and that he told him to prepare them but said 'there was no hurry about it.' Miller said that when the notary asked him what should be stated as the consideration, he said, 'I don't know exactly, I guess just make it one dollar, or whatever is customary.'

Mrs Schrader's parents continued to live in the residence, and concerning this she said: 'I feel it is a duty I have to my parents that they will continue to make their home there.' She also said: 'It's always been understood it would be their home as long as they continued to live here.' She said that the property conveyed to her was near a hospital so that her parents could occasionally rent rooms, and that 'gives them a chance of making a scant living, a thing they perhaps wouldn't have if I should take possession and put them in my own home or something of that kind.' She said she never knew that her father owed any obligations except what he owed her and the mortgage on the adjoining...