Crothers v. Busch

• Decision Date: 05 February 1900
• Citation: 55 S.W. 149,153 Mo. 606
• Parties: CROTHERS et al. v. BUSCH et al.
• Court: Missouri Supreme Court

55 S.W. 149

153 Mo. 606

CROTHERS et al. v. BUSCH et al.

Supreme Court of Missouri, Division No. 1.

February 5, 1900.

FRAUDULENT CONVEYANCES — FRAUD — GRANTOR — KNOWLEDGE OF TRUSTEE.

Where a debtor transferred her property to a trustee, to secure and prefer one of her creditors, and to hinder others in the collection of their claims, and the trustee and the preferred creditor knew of such purpose, and that such would be the effect of the transfer, but acted only to secure the preference, the transfer was not void as to the other creditors.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Bill by O. C. Crothers and another against Martha Busch and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

J. J. Collins & H. C. Young, for appellants. Hamlin & Tatlow, for respondents.

VALLIANT, J.

This is a suit in equity to set aside a deed of trust on the ground of fraud. The petition states substantially that defendant Martha Busch was indebted to plaintiff Crothers in the sum of $1,000, and to his co-plaintiff Cotten in about the same sum; that in March, 1896, Crothers obtained judgment on his debt, and in September following Cotten obtained judgment on her debt; that on February 10, 1896, while the suit on the Crothers debt was pending, Martha Busch executed a deed of trust conveying certain real estate (described) to a trustee for the benefit of one Meisner; that the same was without consideration, and made solely to hinder, delay, and defraud the plaintiffs and other creditors of the grantor; that the land was sold by the trustee, and bought in by Meisner, who at the time had full knowledge of the fraud, and was participating in it; that in March, 1896, Meisner executed his will, naming Martha Busch as one of his devisees; that afterwards the plaintiff Crothers had the land sold under execution on his judgment, and bought it, and holds now the title for the benefit of himself and his co-plaintiff. The prayer of the petition is that the deed of trust be decreed invalid and set aside. The defendants are Martha Busch, the trustee in the deed of trust, and the devisees and executor under the will of Meisner, deceased. Their answer is a general denial. The evidence on the part of the plaintiff tended to show that on February 10, 1896, the suit of plaintiff Crothers, in which his judgment was afterwards obtained, was set for trial; and, while there was some talk of a compromise, it was by consent passed for a few weeks, and on February 11th this deed of trust and two other deeds of trust by the defendant Busch were filed for record. The note on which the Cotten judgment was afterwards obtained was then in the hands of lawyers for collection, and Busch knew it. Martha Davis, one of plaintiffs' witnesses, testified that defendant Busch told her that she had made these deeds to keep the plaintiffs from getting their money, because she said that the Crothers debt was unjust, and the Cotten debt had been paid. Phillis Lewis, a servant for Meisner, testified that he told her that he had gotten all of Mrs. Busch's property made over to him; that he had been wanting to get it so for a long time, and it was then fixed so that "Old Belle" (referring to the woman who owned the debt held by plaintiff Crothers) would not get anything; that she and Mrs. Cotten had sued "the old woman" (referring to defendant Busch), but that they would not get anything. Belle Wilson, a witness for plaintiffs, who was the "Old Belle" referred to by the witness Phillis, testified that defendant Busch told her that they had better settle the business between them, because, if they did not, the lawyers would get it all. This witness also stated that she was the owner of the note in the Crothers suit, and had transferred it to him for collection, and he had advanced her some money on it (how much, she did not say), and it was to be repaid him when the debt was collected. The deeds of trust above mentioned, filed for record February 11, 1896; the will of Meisner; a bill of sale by defendant Busch of all her household goods to one Josie Titus, filed for record December 21, 1895; and the two judgments of the plaintiffs, — were produced in evidence. This was substantially all the evidence introduced by the plaintiffs to support their side of the case. On the part of defendant, the testimony tended to show that the deed of trust in suit was given to secure a debt owing by defendant Busch to Meisner, and the other deeds of trust were given to secure debts she owed the parties interested; that they were made under the advice of the mutual attorney of Busch and Meisner, who was also named as trustee in the Meisner deed, and was the beneficiary in one of the other deeds. He testified that he made up the amount for which the Meisner deed was given from data furnished by them at the time, and from his own knowledge as their attorney, and that the object was to secure Meisner. The testimony of the witness Dixon showed that he had loaned Meisner $1,200 on a mortgage on his farm, of which sum he had, at Meisner's request, given to defendant Busch $700, and something over $100 to Meisner, which, with commissions witness charged on the transaction, and something deducted to pay a previous loan, made up the $1,100. This $700 and $240 which the attorney testified Meisner had previously paid him for Busch, and interest, and some other smaller items...