Commercial Bank v. Kuehner

• Decision Date: 07 December 1908
• Citation: 115 S.W. 510,135 Mo. App. 63
• Parties: COMMERCIAL BANK OF BOONVILLE v. KUEHNER (VOLLRATH, Garnishee).
• Court: Missouri Court of Appeals

115 S.W. 510

135 Mo. App. 63

COMMERCIAL BANK OF BOONVILLE v. KUEHNER (VOLLRATH, Garnishee).

Kansas City Court of Appeals, Missouri.

December 7, 1908.

Rehearing Denied February 1, 1909.

1. FRAUDULENT CONVEYANCES (§ 74)—VOLUNTARY GIFTS BY INSOLVENT PERSONS—VALIDITY AS TO CREDITORS.

A voluntary gift of property by an insolvent is void as to his creditors, regardless of the existence of an actual intent on his part or on the part of the donee to defraud such creditors, and such intent will be presumed from the act itself.

2. FRAUDULENT CONVEYANCES (§ 76)—"VOLUNTARY CONVEYANCE"—CONSIDERATION.

A "voluntary conveyance" by an insolvent is a conveyance without any valuable consideration, and, where there is a valuable consideration, no matter how inadequate, the conveyance is not voluntary, and actual intent to defraud the creditors of the transferror must be found as a fact to defeat the transfer.

3. FRAUDULENT CONVEYANCES (§ 88)—CONSIDERATION —SECURITY.

A pledge of personalty to secure the payment of a debt imports a valuable consideration.

4. FRAUDULENT CONVEYANCES (§ 88)—CONSIDERATION —FRAUDULENT INTENT.

An insolvent wife assigned a note of $800 against her husband to a creditor of the husband to secure a debt of $350 due from him. The husband had been adjudged a bankrupt. Held, that the assignment of the note was not voluntary, and the existence of an actual intent to defraud must be shown to defeat it.

5. FRAUDULENT CONVEYANCES (§ 64)—ACTUAL FRAUD—EVIDENCE.

An insolvent wife assigned a note against her husband to a creditor of the husband to secure a debt due from him. The husband had been adjudged a bankrupt. Held, that an actual intent to defraud the creditors of the wife was not shown by the mere fact of the assignment of the note, though it resulted in withdrawing from the creditors of the wife property which otherwise would have been applicable to the payment of their demands.

Appeal from Circuit Court, Cooper County; Wm. H. Martin, Judge.

Action by the Commercial Bank of Boonville against Catherine Kuehner and another, defendants, and Charles L. Vollrath, garnishee on execution. From a judgment for the garnishee, plaintiff appeals. Affirmed.

John & J. W. Cosgrove, for appellant. W. G. & G. T. Pendleton and W. M. Williams, for respondent.

JOHNSON, J.

Plaintiff brought suit against L. C. Kuehner and his wife, Catherine Kuehner, on a promissory note, and obtained judgment in the sum of $685 and costs, had execution issued, and caused Charles L. Vollrath to be summoned as garnishee of Mrs. Kuehner. Interrogatories were filed and answered and were followed by the filing of a denial by plaintiff and a reply by the garnishee. Plaintiff filed a motion for judgment on the pleadings, which the court heard and denied. No evidence was offered by either party. Judgment was rendered for the garnishee on the pleadings, and plaintiff appealed.

As we understand the record, plaintiff stood on its motion for judgment which for all of its purposes admitted the truth of the allegations in the reply of the garnishee. Facts thus established by the pleadings are as follows: The suit of plaintiff against Kuehner and his wife was begun April 23, 1907, and judgment recovered on the 25th day of May. On May 6th, the wife, being insolvent, assigned and delivered to Vollrath a promissory note of $800 she held against her husband, to secure the payment of a debt of $350 her husband owed to him. Prior to this event, Kuehner had been adjudged a bankrupt, and on May 15th Vollrath presented the assigned note for allowance against the estate, and, after it was allowed as a demand, collected a dividend thereon amounting to $373.96, and deposited the money with the clerk of the...