Burns v. Bangert
| Citation | 4 S.W. 677,92 Mo. 167 |
| Parties | Burns et al. v. Bangert et al., Appellants |
| Decision Date | 06 June 1887 |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
Reversed.
W. H Clopton for appellants.
(1) Plaintiffs having bought the land, pending the litigation cannot maintain this suit. They are purchasers of a mere litigation right. Bispham's Eq., sec. 166; 2 Story's Eq. 1040; DeHoughton v. Money Law, 2 Chan. Ap. 160; Smith v. Harris, 43 Mo. 557; Wallen v Railroad, 74 Mo. 522; Railroad v. Railroad, 20 Wis. 183; Prosser v. Edmonds, 1 Younge and Coll. 481, 499; French v. Shotwell, 5 Johns. Ch. 566; McMahon v. Allen, 34 Barb. 56; Gardner v. Adams, 12 Wend. 297; Marshall v. Means, 12 Ga. 61; Wilhite v. Roberts, 4 Dana, 172. (2) The children of Henry Tieman should have been joined as parties defendant. It was the duty of the court to have them brought in. Butler v. Lawson, 72 Mo. 246; Hayden v. Marmaduke, 19 Mo. 403. Henry Bangert qualified as curator of the children and allowed part of their money to remain in the land. To that extent they were his creditors, and he had a right to protect them by making the deed to his wife's trustee. 3 Will. on Ex. 1947; Putlig v. Stace, 4 Ves. 622; Crosskill v. Bower, 32 Beav. 86; Norris Appeal, 71 Pa. St. 106, 125. (3) The property having been conveyed, before judgment had against Henry Bangert, to his wife's trustee, for a valuable and sufficient consideration, passed the legal title to her trustee, and she is entitled to hold it as against her creditors, who did not contract on the faith of his being the bona fide owner of the property. (a) The money belonging to the wife used in the purchase of the property was "rents, issues, and products" of her real estate. R. S., sec. 3295; Hall v. Cole, 40 Mo. 181, 184; Abernathy v. Whitehead, 69 Mo. 28; Fisk v. Wright, 47 Mo. 351; Mueller v. Kaessman, 84 Mo. 324; Kirkwell v. Kirkpatrick, 70 Mo. 214; Allen v. Cowen, 23 N.Y. 505; Williams v. McGrode, 13 Minn. 42; Hanson v. Fidelet, 55 Me. 189; Feller v. Alden, 23 Wis. 304; Dean v. Bailey, 50 Ill. 484. (b) The fund belonging to the wife must be treated quasi as her separate estate. Therefore, land purchased with such fund by the husband belonged to her whether the deed was taken in her name or his. Martin v. Colburn, 88 Mo. 229; Payne v. Twyman, 68 Mo. 339. (c) The plaintiffs' grantor bought at sheriff's sale, with full knowledge of the sources from which the money came with which the farm was bought, and that the deeds from Henry Bangert to Benne, and from Benne to the trustee of Charlotte Bangert, were made and recorded. (d) The products of the labor of the husband on the land of the wife, exempt from execution, belong to the wife. Knapp v. Smith, 27 N.Y. 280; Feller v. Alden, 23 Wis. 205; Buckley v. Wells, 33 N.Y. 520; Gage v. Douchy, 34 N.Y. 297; McIntire v. Knowlton, 6 Allen, 566; Dean v. Barly, 50 Ill. 484. (5) The judgment is irregular, in that it is, in part, against a married woman in personam. Caldwell v. Stephens, 57 Mo. 589. The judgment on the ejectment count being void, as to the married woman, on appeal, will be declared void as to all. Holton v. Towner, 81 Mo. 366; Corrigan v. Bell, 73 Mo. 57. (6) The judgment against Henry Bangert is manifestly wrong. He is not in possession and there is no proof that he is or was. The property is held by his wife as separate estate. Possession in a defendant in ejectment is one of the facts which must be alleged and proved. Clark v. Stanchfield, 57 Mo. 575.
Franklin Ferriss and Gist Blair for respondents.
(1) This suit was properly revived in the names of present plaintiffs and respondents. Bobb v. Woodward, 50 Mo. 101; Zoll v. Soper, 75 Mo. 462; Lionberger v. Baker, 14 Mo.App. 353; S. C., 88 Mo. 447. (2) The deeds sought to be set aside were made without consideration. Henry Bangert, the grantor, was about to be sued by plaintiff for over a thousand dollars, and this conveyance left him with no other property subject to execution. This is practically conceded by defendants. The presumption of fraudulent intent follows. Bump on Fraud. Con. 281; Polter v. McDowell, 31 Mo. 62. The deed to his wife was void as to his creditors, being made without consideration. (3) Evidence to create a resulting trust in the face of an absolute deed and long-continued acts of ownership must be of the strongest and most unequivocal character. Ringo v. Richardson, 53 Mo. 385; Kennedy v. Kennedy, 57 Mo. 73; Thomas v. Chicago, 55 Ill. 403. (4) (a) Henry Bangert, when he married his wife, acquired an absolute ownership of all the personal property in possession belonging to his wife at the time of marriage, or which came to her afterwards, she having no separate estate. Woodford v. Stephens, 51 Mo. 447; Terry v. Wilson, 63 Mo. 499; Kidwell v. Kirkpatrick, 70 Mo. 214; Hammons v Renfrow, 84 Mo. 342. (b) Her possession was his possession. Bishop Married Women [1 Ed.] secs. 52, 53, 64; Walker v. Walker, 25 Mo. 367; Terry v. Wilson, supra. (c) This rule applies to money derived from the sale of the products of the farm left to Charlotte Bangert by her former husband. Clark v. National Bank, 47 Mo. 17; Bledsoe v. Simms, 53 Mo. 308; Dillenberg v. Wrisberg, 10 Mo.App. 465. (5) The alleged rights of the children do not stand in the way of the decree because, first, they are not parties to the suit and cannot be affected by the judgment; and second, the evidence is perfectly convincing that their money was not used in the purchase of the land. (6) The judgment of the court of appeals, as entered of record, is against Bangert and wife for possession, and against Bangert for rents and profits, and is, therefore, right.
This cause has twice been in the St. Louis court of appeals, and is reported in Bangert v. Bangert, 13 Mo.App. 144, and Burns v. Bangert, 16 Mo.App. 22.
In 1872, one Tieman was the owner of a valuable and productive farm, designated, in the evidence, as the Columbia bottom farm, upon which he resided at the date of his death in said year. He left as his widow, Wilhelmine Charlotte Tieman, usually spoken of as Charlotte, and four minor children. The widow continued, with the said children, to reside upon the said farm after his death, and held the same under the provision of Tieman's will, which will be noticed hereafter.
In the first year after the death of Tieman, the widow saved, from the products of the farm, the sum of one thousand dollars. Some gathered crops which the husband left on said farm and which she sold, entered into this sum. Whilst residing on this farm, in the year 1873, and one year and some months after the death of Tieman, her first husband, said Charlotte Tieman intermarried with the defendant, Henry Bangert, who, immediately after the marriage, became administrator, de bonis non, of her first husband's estate, and as such received into his hands about twenty-five hundred dollars. He also became curator for each of said four minor children. He was possessed of no means at the date of the marriage. For three years thereafter he lived with his said wife upon the Columbia bottom farm, and they, with the minor children, cultivated it together, the wife and children laboring in the fields as well as said husband, and doing the cooking and the household work of all descriptions. Said Henry Bangert had no other occupation, or business, or means of making money, except such as were afforded by the said farm, so held by the wife. Upon this he bestowed his time and labor, as we have said.
In 1876 said Henry Bangert bought a farm, near the Columbia farm, held by his wife under Tieman's will, paying therefor fifty-six hundred and fifty dollars, in cash, and took a deed of general warranty therefor in his own name. The grantor in said deed to Henry Bangert was one Frenz, and this farm is spoken of as the Frenz farm. In April, 1879, Bangert conveyed the Frenz farm to William Benne, who, in May, 1879, conveyed it in trust to Henry Benne for the separate use of said Charlotte, wife of said Henry Bangert. These intermediate deeds were without consideration.
In May, 1879, John Bangert, the uncle of defendant Henry, held the latter's note for one thousand dollars, upon which he instituted suit, and obtained judgment, by default, thereon in June, 1879. This note was the sole obligation and debt of the husband, and was given prior to his said marriage with the widow of Tieman. John Bangert levied execution, under his said judgment, on the said Frenz farm, and at the sheriff's sale became the purchaser thereof for one dollar. He thereupon instituted this suit against Henry Bangert, wife, et al., the first count of the petition being in the nature of a bill in equity, to set aside, as fraudulent, said conveyances made by the husband through a third party to a trustee, to hold for the separate use of the wife. The second count was one in ejectment for the possession of said farm.
Said John Bangert and wife, after the institution of this suit, conveyed the Frenz farm, by deed of quitclaim, to said plaintiffs, Burns & Metcalfe, for six hundred dollars, and said John Bangert also assigned to them the judgment obtained by him against said Henry Bangert, and after the death of said John Bangert, said Burns and Metcalfe were substituted on the record, and the suit revived in their name.
The answer of the defendants, so far as we care to consider the same, alleges, in substance, that said Henry Bangert, acting as the agent of said Charlotte Bangert, the wife, and as curator of said minor children, purchased the said Frenz farm, and that, of the purchase money paid therefor, sixteen hundred dollars belonged to the minor children jointly, and the remaining four thousand dollars belonged to defendant Charlotte Bangert, being the rents, issues, and products of...
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