Clapp v. Kenley

• Decision Date: 04 March 1919
• Docket Number: No. 19482.,19482.
• Citation: 210 S.W. 10
• Parties: CLAPP v. KENLEY et al.
• Court: Missouri Supreme Court

210 S.W. 10

CLAPP v. KENLEY et al.

No. 19482.

Supreme Court of Missouri. Division No. 2,

March 4, 1919.

Motion for Rehearing Denied March 17, 1919.

Appeal from Circuit Court, Sullivan County; Fred Lamb, Judge.

Action "by John W. Clapp against Lena Kenley and another. Judgment for defendants and plaintiff appeals. Affirmed.

D. M. Wilson, of Milan, for appellant.

J. M. Wattenbarger, of Milan, and E. B. Fields, of Browning, for respondents.

FARIS, J.

This is a bill in equity by which it is sought to subject certain lands, the legal title to which is in defendant Lena Kenley, to the payment of a judgment against defendant John Kenley.

Plaintiff is the purchaser at a sale under an execution of the 159-acre tract of land in controversy. The salient facts leading up to this sale run briefly thus: On the 4th day of January, 1900, one Ransom obtained judgment in the circuit court of Sullivan county against defendant for the sum of $1,000, on account of the alleged seduction in May, 1898, of his infant daughter. Shortly thereafter Ransom assigned this judgment to one D. M. Wilson, now counsel for appellant herein. In 1908 Wilson sued on this judgment in order to prevent its lapse by reason of the statutes of repose, and got judgment therein for $1,-528. In February, 1913, Wilson caused execution to issue, levied on the land in controversy, and sold it to plaintiff herein, who thereupon brought this action, and being cast below, appealed in conventional form.

The facts upon which plaintiff relies to fasten in his favor as a creditor the trust upon the land are neither lengthy nor complicated. Defendants were married to each other in December, 1898, and ever since have been and now are husband and wife. In 1901 Hiram Kenley, the father of defendant John Kenley, conveyed to defendant Lena Kenley 40 acres of land. This conveyance was a gift, and was bottomed on no valuable consideration whatever. At the same time Hiram gave and conveyed to his daughter Anna and to each of his other sons and daughters a 40-acre tract of land. Giving his reasons for this conveyance to Lena, Hiram said upon the trial this:

"On December 2, 1901, I conveyed the east 40 acres of what is known as the Jim Kenley farm to the defendant Lena Kenley. She is the wife of my son John. I conveyed it to her because I thought she would take care of it and John wouldn't. I think they had one or two children at that time. Prior to that time my son had been gambling and somewhat reckless. He had nothing when I deeded this to his wife that I recollect of. I had given him property along. He had fooled it away and gambled it off, and it was all gone. I give him four good horses, two at one time and two at another, a good span of coming two year old colts and a span of gray horses that were nice, and they were all gone, and I gave him money besides. I gave her this land in order that she and John Kenley's family might have the benefit of it and he couldn't run through with it."

Afterwards defendants lived and farmed for a few years upon this 40-acre tract, which was given to Lena by Hiram. Later Lena bought the tract of 40 acres, which Hiram had given to his daughter Anna, and after holding it a while sold it at a profit of $1,000. This profit, together with the proceeds of a sale of live stock from their farm, and the purchase price, or barter price, of the original 40 acres were used in acquiring the 159 acres of land here in dispute. On the latter tract there was outstanding at the time of the trial a mortgage for the sum of $3,800. This mortgage was for money which went to purchase the land. As these various parcels of land were purchased, the titles thereto were taken in the name of Lena, in whose name all deals were made and the farming business carried on.

While these trades were making and farming operations being carried on and live stock being bought and sold and reared, defendant John Kenley lived on the farm with Lena as her husband, and acted for her in carrying on and managing all these operations, matters, and things. The bank account was carried at all times in the name of Lena, and checks were always made to her for live stock and other products sold. Lena owned, she says, all of the property, both real and personal, and John had nothing and has never had anything, except certain horses, which he says were used up and lost by him before his marriage in gambling and riotous living. Both Lena and Hiram testify that they knew that the judgment on which this proceeding is bottomed was outstanding and unpaid.

There was no showing upon the trial on the part of plaintiff as to the present value of the 159 acres of land in dispute. Defendant John Kenley says in his testimony that the equity of Lena in this land is worth less than the 40-acre tract of land which his father gave to Lena.

Some other of the facts may become pertinent in the course of the discussion, in which event they will be stated in connection with the matters to which their pertinence is apposite.

I. As we understand the contentions of learned counsel for plaintiff, they are three in number: (a) The conveyance to defendant Lena Kenley by Hiram Kenley of the original 40-acre tract was a mere conveyance in trust for his son John Kenley; (b) but if the evidence should not disclose the existence of this trust, then the mere fact of the conveyance to a daughter-in-law, with knowledge in the donor and donee of the son's indebtedness, is sufficient to create a trust in favor of the debtor which will inure to creditors; and (c) that the fact that the debtor labored, managed, and dealt with his wife's property so that it increased in value, caused such increment to so far become the property of the husband as to render it liable for his debts. Other contentions may be made, but we think all such as may in fairness arise upon the record, and all such as are raised in plaintiff's brief, may be easily considered within the compass of the points above set forth. Some faint suggestion is made of equities accruing to this creditor of John from the fact that on the 6th day of June, 1896, the latter reconveyed to Hiram, his father, 40 acres of land, which the father had, for purposes of his own, theretofore conveyed to John. Since, however, the seduction out of which arose the damage suit, and the judgment here sought to be liquidated, did not occur till May, 1898, it is useless to follow up this suggestion. For the general rule is that a subsequent creditor will not be heard to complain about what his debtor did with his property before the accrual of the indebtedness. Coleman v. Hagey, 252 Mo. 102, 158 S. W. 829. The only exception is that at the time the debtor conveyed his property away, he harbored the fraudulent intent to become indebted and to so hide and smuggle his property as to prevent the collection of the specific debt. In other words, the conveyance must be part and parcel of the accrual of the indebtedness, a linked conspiracy in a manner of speaking. Of this there is not among the proof in the record even the faintest suggestion.

II. Neither is there any evidence in the record that the conveyance to Lena Kenley by Hiram of the original 40-acre tract was intended to be held by her in trust for her husband. The conveyance by which she took title conveys the land to her (so far...