Clark v. Lewis

• Decision Date: 15 December 1908
• Citation: 114 S.W. 604,215 Mo. 173
• Parties: E. SPENCER CLARK, Plaintiff in Error, v. R. B. LEWIS, MABEL V. MICKEL, GEORGE T. MICKEL, SIDNEY H. WHEELHOUSE and CLARA M. WHEELHOUSE
• Court: Missouri Supreme Court

114 S.W. 604

215 Mo. 173

E. SPENCER CLARK, Plaintiff in Error, v. R. B. LEWIS, MABEL V. MICKEL, GEORGE T. MICKEL, SIDNEY H. WHEELHOUSE and CLARA M. WHEELHOUSE

Supreme Court of Missouri, Second Division

December 15, 1908

Error to St. Louis City Circuit Court. -- Hon. Wm. M. Kinsey Judge.

Affirmed.

R. M Nichols for plaintiff in error.

(1) The withholding of the deed of May 8, 1902, by Mickel, from the record, gave to Wheelhouse the indicia of ownership of the property until Ritter entered into the contract of February 14, 1903, and discounted the note of June 19, 1903, with the bank. Upon that evidence of his solvency in the contract Ritter was led to give him credit. The deed, whether construed as an absolute conveyance or a mortgage, should be in equity postponed to the rights of the execution purchaser. Bank v. Doran, 109 Mo. 40; Bank v. Buck, 123 Mo. 141; Gentry v. Field, 143 Mo. 400; Hoard v. Harland, 143 Mo. 469; Bank v. Newkirk, 144 Mo. 473; Wall v. Brady, 161 Mo. 627; Lander v. Ziehr, 150 Mo. 403. (a) The testimony of Wheelhouse and Mickel that they had a settlement the day previous to the date of the deed in which Wheelhouse's indebtedness to his sister was approximated at $ 1,700, if true, shows a deliberate false statement of the consideration in the deed or mortgage, which is of itself a badge of fraud. Benne v. Schnecko, 100 Mo. 250; National Tube Works v. Ring Refrigerator Co., 118 Mo. 365; Boland v. Ross, 120 Mo. 208; Glasgow Milling Co. v. Burns, 144 Mo. 192. (b) Wheelhouse's possession of the premises after he had made an absolute deed of conveyance is a badge of fraud. King v. Moon, 42 Mo. 552; Rice v. Sally, 176 Mo. 107; Bank v. Miller, 163 N.Y. 164. (c) The deed to Mickel was put of record June 26, 1903. Suit resulting in judgment against Wheelhouse was filed February 26, 1904. The account with Mickel for rents was opened by Gerhart November 10, 1904. Wheelhouse's effort to give effect to this deed was because of the filing of the suit against him, and these acts in themselves are badges of fraud. Mason v. Perkins, 180 Mo. 702; McCollum v. Crane, 101 Mo.App. 522. (d) The conveyance by deed of all of Wheelhouse's property to his sister who at the time was in his employ or engaged with him are facts properly to be considered in connection with evidence tending to impeach her alleged claim of mortgagee for fraud. Schroeder v. Walsh, 120 Ill. 403; Whitson v. Griffis, 29 Kan. 211; Goodale v. Wheeler, 41 Ore. 190; Mellier v. Bartlett, 106 Mo. 381; Martin v. Fox, 40 Mo.App. 664. (e) The giving of the absolute conveyance to his sister to secure her, as she claimed, in an account, the items of which she had destroyed, in a sum aggregating $ 1,700, was in itself a fraud, if the deed was intended to operate only as a security as against Wheelhouse's creditors, because the conveyance was a secret trust for the grantor's benefit in excess of the alleged debt. Patterson v. Letton, 56 Mo.App. 325; Brown v. Bradford, 103 Ia. 378; Beidler v. Crane, 135 Ill. 92; Watkins v. Arms, 64 N.H. 99; White v. Megill, 18 A. 355; Barnhardt v. Brown, 122 N.C. 587. (2) The deed conveying a valuable equity worth $ 2,300 from Wheelhouse to his sister for a consideration of one dollar was a voluntary conveyance. Lionberger v. Baker, 88 Mo. 454. (3) The relationship of the parties and the conveyance of this valuable equity for a consideration of one dollar were circumstances which themselves would constitute the transaction, either as to prior or subsequent creditors, fraudulent. Farewell v. Myer, 67 Mo.App. 566; Robinson v. Dryden, 118 Mo. 535. (4) A purchaser at an execution sale becomes vested with all of the rights of the creditor in the execution and is clothed with all of his remedies against all of the fraudulent contrivances of the debtor. Gentry v. Robinson, 55 Mo. 260; Lionberger v. Baker, 14 Mo.App. 353, 88 Mo. 454.

Fordyce, Holliday & White for defendants in error; C. M. Polk of counsel.

The deed to Mrs. Mickel should not be set aside because the necessary evidence to justify such action was not presented at the trial. The evidence being lacking and deficient in the following particulars: (1) There was no actual fraud or fraudulent intent shown on the part of Wheelhouse at the date of executing the deed as to past, present or future creditors, as is necessary to set aside even a voluntary conveyance, which this was not. Payne v. Stanton, 50 Mo. 159; Krueger v. Vorhauer, 164 Mo. 156; Bank v. Simpson, 152 Mo. 638; Lander v. Ziehr, 150 Mo. 403; Johnson v. Murphy, 180 Mo. 597. (2) There was no concurrence by Mrs. Mickel shown in any fraudulent intent on the part of the grantor at the time of the execution of the deed. She was a creditor and could legally be preferred. National Tube Works v. Machine Co., 118 Mo. 375; Forrester v. Moore, 77 Mo. 659; Rice-Stix D. G. Co. v. Sally, 198 Mo. 682; Gust v. Hoppe, 201 Mo. 300. (3) There was no connivance or agreement between grantor and grantee to keep the deed off of record, and the mere fact of keeping the deed from record is at best but one link in the chain of evidence necessary to show fraud. Hord v. Harlan, 143 Mo. 469; Jones v. Levering, 116 Mo.App. 377; Wall v. Beedy, 161 Mo. 625. (4) No one was shown to have been injured by the conveyance or the failure to record it. Both Ritter, if he can claim to have been injured, and Clark had notice of the deed, and therefore cannot ask to have it set aside. Wall v. Beedy, 161 Mo. 625; Bank v. Frame, 112 Mo. 513; Bank v. Newkirk, 144 Mo. 473; Bank v. Rohrer, 138 Mo. 369.

OPINION

BURGESS, J.

This is a suit in equity by which plaintiff seeks to have a certain deed, made by Sidney H. Wheelhouse and Clara M. Wheelhouse, conveying certain real estate in the city of St. Louis to Mabel V. Wheelhouse (Mickel), held and declared void and of no force or effect, and the title to said real estate declared to be well vested in the plaintiff, and for other relief.

Defendants George T. Mickel and Mabel V. Mickel (sister of Sidney H. Wheelhouse) are husband and wife, and defendants Sidney H. Wheelhouse and Clara M. Wheelhouse are husband and wife, all residents of the State of Illinois; and defendant R. B. Lewis is tenant of house No. 4120 Westminster Place, in the city of St. Louis, Missouri, hereinafter described.

Plaintiff avers in his petition that prior to May 18, 1902, said Sidney H. Wheelhouse, defendant, was seized and possessed of the following described real estate in the city of St. Louis, Missouri, to-wit: The western one foot and eleven inches of lot thirteen, and the eastern twenty-four feet and one inch of lot twelve of N. Coleman's subdivision of Block 3300 of P. Lindell's second division, in City Block 3912 of the city of St. Louis, said lot having a front of twenty-six feet on the south line of Westminster Place, by a depth southwardly, between parallel lines, of one hundred and forty-two feet and six inches, to an alley fifteen feet wide, upon which said property there is situated a two-story dwelling house known as No. 4120 Westminster Place. That said Sidney H. Wheelhouse became indebted, jointly with the St. Louis Autolectric Company, E. P. V. Ritter and E. R. Kemp, to the Fourth National Bank of St. Louis, on February 21, 1903, in the sum of three thousand dollars, which was evidenced by a promissory note signed by said Autolectric Company, E. P. V. Ritter, E. R. Kemp and Sidney H. Wheelhouse, maturing four months after date, which indebtedness became due on June 19, 1903; that thereupon the said indebtedness was renewed with the said bank by the execution of a renewal note which matured November 24, 1903, and that said indebtedness was further renewed by all of said parties, which last renewal matured thirty days after November 24, 1903; that thereafter, on February 13, 1904, said E. P. V. Ritter paid on said indebtedness the sum of one thousand dollars, and the said Fourth National Bank, for value received, transferred, sold and delivered the said note to John S. Leahy, who thereafter, on February 27, 1904, instituted suit in the circuit court of the city of St. Louis against the said Sidney H. Wheelhouse for the balance due upon the said note, and recovered judgment, on May 18, 1904, for the sum of two thousand and forty dollars, with interest at eight per cent per annum.

Continuing, the petition states that execution was issued upon said judgment in favor of said John S. Leahy and against said Sidney H. Wheelhouse on June 7, 1904, directed to the sheriff of the city of St. Louis, and that the sheriff levied upon and seized all of the right, title and interest of the said Sidney H. Wheelhouse in and to the said real estate, and, after advertising the same in accordance with law, sold at public auction, on July 1, 1904, all the right, title, interest claim, estate and property of said Sidney H. Wheelhouse in and to said real estate, to the plaintiff, for the sum of one hundred and twenty-five dollars, he being the highest and best bidder, and delivered to him a deed dated July 1, 1904.

"Plaintiff further avers that while the said Sidney H. Wheelhouse was so seized and possessed of the above-described real estate, and on, to-wit, May 8, 1902, he pretended to convey to Mabel V Wheelhouse, then of the city of St. Louis, all of his right title and interest in and to the said property for the consideration of one dollar, but that the said pretended conveyance was not recorded until on, to-wit, June 26, 1903, on which date the same was recorded in the recorder's office of the city of St. Louis, in book 1720, at page 202; that the said conveyance was purposely kept off of record by connivance and consent, and with the intent of the said Mabel V. Wheelhouse and Sidney H. Wheelhouse of giving to the said Sidney H. Wheelhouse the...