Citizens Bank of Pleasant Hill v. Robinson

• Citation: 117 S.W.2d 263,342 Mo. 697
• Decision Date: 26 May 1938
• Docket Number: 34355,34356
• Parties: Citizens Bank of Pleasant Hill, a Corporation, Appellant, v. M. R. Robinson et al. Citizens Bank of Pleasant Hill, a Corporation, v. M. R. Robinson et al., Appellants
• Court: United States State Supreme Court of Missouri

117 S.W.2d 263

342 Mo. 697

Citizens Bank of Pleasant Hill, a Corporation, Appellant, v. M. R. Robinson et al.

Citizens Bank of Pleasant Hill, a Corporation, v. M. R. Robinson et al., Appellants

Nos. 34355, 34356

Supreme Court of Missouri

May 26, 1938

Motion for Rehearing Overruled April 1, 1938.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge; Opinion filed at September Term, 1937, December 17 1937; motion for rehearing filed; motion overruled April 1 1938; motion for rehearing on modified opinion filed; motion overruled at May Term, 1938, May 26, 1938.

Affirmed.

Wilson, Bundschu & Bailey for Citizens Bank of Pleasant Hill.

(1) M. R. Robinson and his wife, Elizabeth, having conveyed the Lone Jack lots to Georgia Robinson, who by virtue of such title obtained an extension of the notes held by the bank, made the property liable for the debt to the bank free from the estate by the entirety held by Elizabeth Robinson. Singer Mfg. Co. v. Stephens, 169 Mo. 1, 68 S.W. 905; Rieschick v. Klinegelhoefer, 91 Mo.App. 430; Zehnder v. Stark, 248 Mo. 30, 154 S.W. 92; Wait on Fraudulent Conveyances (3 Ed.), sec. 387, p. 700; Keel v. Larkin, 83 Ala. 142, 3 Am. St. Rep. 702, 3 So. 296; 13 R. C. L. 660. (2) The acceptance by the plaintiff of Georgia Robinson's signature on the notes, after the property had been conveyed to her by M. R. Robinson and his wife, Elizabeth, did not estop plaintiff from attacking the transfers as such transfers were made without the knowledge of the bank which did not participate in or influence the same, received no benefit therefrom, and acted in ignorance of the true facts and circumstances which induced the fraudulent transfers. 27 C. J., 483; Martin v. Johnson, 23 Mo.App. 96; Proskauer v. Peoples Savings Bank, 77 Ala. 257; Tarkington v. Pervis, 128 Ind. 182, 25 N.E. 879, 9 L. R. A. 1200; Heaton v. White, 85 Ind. 376; 21 C. J. 1207, 1208. (a) The defendants, having failed to plead or set up in their motion for a new trial, that the bank was estopped to question the transfer of the property to Georgia Robinson by reason of having accepted Georgia Robinson's signature on the renewal notes, cannot now raise the question for the first time in the appellate court. Williams v. Jenkins, 32 S.W.2d 580, 326 Mo. 722; Belcher v. Haddix, 44 S.W.2d 177; Waters v. Gallemore, 41 S.W.2d 870; Berry v. Rood, 209 Mo. 662, 108 S.W. 22; Spotts v. Spotts, 55 S.W.2d 977, 331 Mo. 917; Thompson v. Cohen, 127 Mo. 215. (3) The estate by the entirety held by Elizabeth Robinson was waived by the deed to Georgia Robinson who became liable on the notes after such conveyance to her, and it was not necessary that a judgment at law be first obtained against Georgia Robinson as the court has jurisdiction to do complete justice between the parties. 15 C. J. 1387; 50 Harvard Law Review 171; State ex rel. v. Hope, 102 Mo. 431, 14 S.W. 985; Munford v. Sheldon, 9 S.W.2d 907; Keel v. Larkin, 83 Ala. 142, 3 Am. St. Rep. 702, 3 So. 296. (4) The foreclosure of Georgia Robinson's deed of trust on the farm, irrespective of its validity, should be set aside. (5) The petition of plaintiff was not multifarious as this was a creditor's bill and different persons interested in different tracts of land obtained by different deeds may all be joined as parties defendant in such an action. Tucker v. Foster, 69 A. L. R. 220, 152 S.E. 376; Bobb v. Bobb, 76 Mo. 419; Rinehart v. Long, 95 Mo. 396, 85 S.W. 559; Hughes v. Renshaw, 282 S.W. 1014, 314 Mo. 95; State v. C. & A. Railroad Co., 178 S.W. 129, 265 Mo. 646; Donavan v. Dunning, 69 Mo. 436; 10 R. C. L. 432; 21 C. J. 319; 15 C. J. 1424; Bobb v. Bobb, 8 Mo.App. 257, reversed 76 Mo. 419; Chaput v. Bock, 224 Mo. 73, 123 S.W. 16; Peniston v. Hydraulic Press Brick Co., 234 Mo. 698, 138 S.W. 532; Trefny v. Eichenseer, 262 Mo. 436, 171 S.W. 930. (6) The trial court rightfully taxed the costs of the case against M. R. Robinson, Everett Robinson, John W. Robinson, Georgia Robinson, and Elizabeth Robinson.

Burrus & Burrus and Johnson, Garnett & Quinn for Robinson and others.

(1) Plaintiff is not entitled to have its judgment declared a lien against the town lots, and the decree of the trial court declaring that the deed of August 10, 1931, conveying said lots to Georgia Robinson, reserving to the grantors a life estate therein, resulted in a waiver of the grantor's estate by the entirety, and subjecting said lots to the lien of plaintiff's judgment, is erroneous and should be reversed. An estate by the entirety cannot be taken for the individual debt of the husband. Stifel's Brewing Co. v. Saxy, 273 Mo. 159, 201 S.W. 71; Ashbaugh v. Ashbaugh, 273 Mo. 353, 201 S.W. 72. There can be no fraudulent conveyance of property which is already exempt or otherwise beyond the reach of creditors. If creditors cannot reach it, then they are not injured when it is transferred. Burns v. Bangert, 92 Mo. 167; Stam v. Smith, 183 Mo. 469; Ulrich v. Pierce, 233 S.W. 404; Armor v. Lewis, 252 Mo. 568, 161 S.W. 255; Layson v. Riley, 203 S.W. 645; May v. Gibler, 319 Mo. 672, 4 S.W.2d 772; 27 C. J. 438. (2) Plaintiff acquiesced in the transfers of the town lots and of the farm, accepted benefits therefrom by gaining protection against the claim of another creditor, and by obtaining the accommodation endorsement of Georgia Robinson to its notes, and cannot complain that such transfers were fraudulent. Thompson v. Cohen, 127 Mo. 215, 28 S.W. 984; Torreyson v. Turnbaugh, 105 Mo.App. 445, 79 S.W. 1002; Purse v. Estes, 165 Mo. 58, 65 S.W. 245; Milan Bank v. Richmond, 280 Mo. 244, 217 S.W. 74; Gutzwiller v. Lackman, 23 Mo. 173. (3) The trial court's decree that Elizabeth Robinson's estate by the entirety was waived by the deed to Georgia cannot be sustained on the theory that Georgia, while holding the legal title thereto, became an accommodation endorser of the bank's notes. Georgia Robinson is not a judgment debtor of the bank, and before a creditor can complain of a transfer of assets it must first reduce its claim that an indebtedness exists to judgment against the transferor. Hume v. Wright, 274 S.W. 744; Curlee Clo. Co. v. Boxer, 51 S.W.2d 894; Edwards & Son Co. v. Rosenheim, 74 Mo.App. 621; Rumsey-Sikemeir Co. v. Bank of Aurora, 139 Mo.App. 306, 123 S.W. 75; Coleman v. Hagley, 252 Mo. 102, 158 S.W. 829; Hunter v. Mathewson, 149 Mo.App. 601, 129 S.W. 749; Daggs v. McDermott, 327 Mo. 73, 34 S.W.2d 49. The transfers to Georgia Robinson vested in her only the bare legal title, leaving the equitable title to the town lots in Mark and Elizabeth Robinson as tenants by the entirety, and the property could not have been reached by an execution against Georgia. Morrison v. Herrington, 120 Mo. 673; Sorrell v. Bradshaw, 222 S.W. 1024; Italiana v. Higbee Coal Mining Co., 331 Mo. 362, 53 S.W.2d 1053. (4) The trial court properly upheld Georgia Robinson's deed of trust on the farm, but the decree was erroneous in setting aside the trustee's deed given on foreclosure of that deed of trust pending the suit. The deed of trust to her was valid because given for an actual loan of money, and her debtors had the right to prefer her claim over that of the bank. 27 C. J. 616; Burston v. Fennewald, 222 Mo.App. 128, 2 S.W.2d 824; Friedel v. Bailey, 329 Mo. 22, 44 S.W.2d 9; First Natl. Bank of Milan v. Kibble, 221 Mo.App. 311, 273 S.W. 148, affirmed on certiorari, 315 Mo. 966, 287 S.W. 432. The lis pendens, while a caveat to strangers to the record, does not operate as an injunction, and parties to the record have the right to deal with the property as they see fit pendente lite, subject only to the contingency of an adverse result in the suit. Sec. 3155, R. S. 1929; Zander v. Phillips, 213 F. 29. (5) Plaintiff's bill in equity should be dismissed because there is a total failure of proof of conspiracy among the several defendants and the bill is therefore multifarious. Mullen v. Hewitt, 103 Mo. 652; Bobb v. Bobb, 8 Mo.App. 257; Chaput v. Bock, 224 Mo. 73, 123 S.W. 16; Peniston v. Hydraulic Press Brick Co., 234 Mo. 698, 138 S.W. 532; Trefny v. Eichenseer, 262 Mo. 436, 171 S.W. 930.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, recently reassigned to the writer, is an action in equity to set aside certain conveyances of land in Jackson County. These conveyances were alleged to have been made to hinder, delay, and defraud the creditors of Mark Robinson and his two sons, Everett and John Robinson. Defendants, who claim title or rights under these conveyances, filed cross bills seeking to have their validity established. The court entered a decree which decided the issues (as hereinafter detailed) in a way that was not satisfactory to any of the parties, either plaintiff, or defendants who claim ownership, and they have all appealed.

Everett and John Robinson were engaged in farming, and raising, buying and selling livestock under the name of M. R. Robinson & Sons. M. R. (Mark) Robinson was their father. He allowed them to use his name and credit but was not as active in the business as his sons. The only agreement they had was that "every fellow just took what he wanted." Chronologically stated, the material transactions involved are as follows:

January 28, 1929, John Robinson and Everett Robinson commenced relations with plaintiff by making a note for $ 2000. This note was also signed by Mark Robinson. Their account with plaintiff was carried as M. R. Robinson & Sons. Prior to making this loan, Everett Robinson made a financial statement as to the assets and liabilities of M. R Robinson & Sons to J. R. Knorpp, plaintiff's cashier. This statement showed 100 acres of clear land valued at $ 12,500, and town property in Lone Jack consisting of three acres valued at $ 3500. Other real and personal property, valued at $ 40,900 in this...