Columbia Sav. Bank v. Winn

• Decision Date: 24 December 1895
• Citation: 132 Mo. 80,33 S.W. 457
• Parties: COLUMBIA SAV. BANK v. WINN et ux.
• Court: Missouri Supreme Court

33 S.W. 457

132 Mo. 80

COLUMBIA SAV. BANK v. WINN et ux.

Supreme Court of Missouri, Division No. 1.

December 24, 1895.

FRAUDULENT CONVEYANCES — HUSBAND AND WIFE — INDEBTEDNESS — SEPARATE PROPERTY OF WIFE — INTEREST.

1. Indebtedness of a husband to his wife is not shown, as against his creditors, by the fact that at the time of their marriage, when the common law, in respect to property rights of husband and wife, was in force, she had certain live stock, which went into his possession, and that at various times during the 24 succeeding years, according to their testimony, she claimed the proceeds of the property and its increase, and he promised to account therefor some time, he having dealt with it as his own, and used the proceeds, and no account having been kept with respect to it.

2. A conveyance by husband to wife is not fraudulent because the value of the property conveyed exceeds the amount of the property conveyed exceeds the amount of his debt to her, it not being in excess of the value of her property, which he received from her, with interest thereon, part of which had become his by operation of law, notwithstanding her intention not to confer it on him.

3. Where a conveyance is not fraudulent, but part of the consideration is invalid as against creditors of the grantor, the grantee will be considered to hold such interest in the granted property as represents the invalid part of the consideration, for the use of creditors of the grantor.

4. Rev. St. 1879, § 3296, declares that personal property of a married woman shall, with the income, increase, and profits thereof, be her separate property, unless she by writing give her husband authority to dispose of it for his

own use and benefit, but it shall be subject to execution for any debt of his created for family necessaries. Held, that where, by her permission, but without any agreement in regard thereto, he receives her money and uses it in his business, and in producing an income for the general support of his family, he cannot be charged with interest, but with the principal only.

Appeal from circuit court, Boone county; John A. Hockaday, Judge.

Suit by the Columbia Savings Bank against A. H. Winn and wife. Decree for plaintiff. Defendants appeal. Reversed.

This is a suit by plaintiff, a judgment creditor of defendant A. H. Winn, to set aside as fraudulent, and cancel, a deed made by him to his wife, defendant Ann E. Winn, to 120 acres of land in Boone county. The petition charges that the said defendant A. H. Winn, being the owner of the land, and insolvent, and anticipating suits against him, without consideration, and with the intent to hinder, delay, and defraud his creditors, conveyed the same to his wife by deed dated April 26, 1893. It charges further that on the 15th day of June, 1893, plaintiff obtained a judgment against the said A. H. Winn for the sum of $1,552.72; that he has no other property subject to execution; and that the conveyance to his wife is an obstruction to reaching the property by execution. Defendant by answer denied the fraud charged, and stated affirmatively that defendant A. H. Winn was indebted to his wife in the sum of $1,800, and the land was conveyed to her in good faith in satisfaction of such indebtedness. On the trial, the insolvency of defendant A. H. Winn, the execution and delivery of the deed to his wife, the judgment of plaintiff, and return of an execution nulla bona, were facts not contested. It was also shown by plaintiff that nothing was paid by the wife to the husband at the time the deed was made and delivered. Certain statements and declarations of A. H. Winn, made a few days before the conveyance, were proved. These tended to prove that he undertook to make a statement as to what property he owned, and to whom he was indebted. No debt to his wife was mentioned. Defendants were married in 1868, and at the time the father of the wife gave her a mare, a cow, and some sheep. These went into possession of the husband. There was no direct evidence of an agreement between the husband and wife that the ownership of this property should continue in the latter. The husband managed and controlled this property and its increase as his own. No account of any kind was kept between them, in respect to this property or the expense of keeping it, or of the proceeds of sale of its increase. There was evidence that several horses and mules were raised from this mare, and were sold by the husband, and the proceeds retained by him. The evidence tended to prove that the wife claimed this increase, and that the husband promised her that he would give her the amount received by him from such sales whenever she called upon him for it. These claims and promises were shown, mostly, by the evidence of the parties themselves. The evidence also showed that, about the year 1885, Mrs. Winn inherited from her father $667.94, from her brother $235.00, and from her mother $79.50, making a total of $982.44. This amount her husband received with her knowledge and consent. The evidence tended to prove that part of this money was used directly or indirectly in paying for the land in question. The title to the land was in the name of her husband, with her knowledge, and the husband promised her to account for it whenever called upon. There was no promise to pay interest on it. So far as appears, the husband had the entire use of the land, and the money was used in his business. After hearing the evidence the court found for plaintiff, and entered a decree setting aside the deed. From this judgment, defendants appealed.

Wellington Gordon and Webster Gordon, for appellants. C. B. Sebastian, for respondent.

MACFARLANE, J. (after stating the facts).

1. Our opinion is that the evidence did not establish an indebtedness of the husband to the wife, on account of the proceeds of the sale of live stock given the wife on her marriage, and of its increase. At the time of the marriage in 1868, the common law in respect to the property rights of husband and wife was in force in this state. By the common law the personal property of the wife, when reduced to possession by the husband, became vested in him in law; but, in case the husband assented to her continued separate ownership, equity treated the property as belonging to her exclusively. These principles are well settled. Botts v. Gooch, 97 Mo. 90, 11 S. W. 42; White v. Clasby, 101 Mo. 167, 14 S. W. 180, and cases cited by each. In the case last cited it is said: "It may now be accepted as settled law in this state that a husband, by agreement with his wife, and a uniform course of conduct during marriage towards her chattel property, may, as between themselves and those in privity with them, invest such property with the character of a sole and separate equitable estate, which a court of equity will recognize and protect."...