Dawes v. Williams

• Citation: 40 S.W.2d 644,328 Mo. 680
• Parties: C. A. Dawes v. D. E. Williams and Matilda Williams, Appellants
• Decision Date: 03 July 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 644

328 Mo. 680

C. A. Dawes v. D. E. Williams and Matilda Williams, Appellants

Supreme Court of Missouri

July 3, 1931

Appeal from Circuit Court of St. Louis County; Hon. J. C Kiskaddon, Judge.

Affirmed.

W L. Cole and T. P. Hukriede for appellants.

(1) The declarations of a coconspirator are only admissible against their associates when such declarations form a part of the res gestae and accompany the prosecution of the common object. Poe v. Stockton, 39 Mo.App. 550. (2) To render statements of one coconspirator admissible as against the other, competent evidence must be adduced tending to establish the conspiracy. In re Largue's Estate, 200 S.W. 83; Lewellen v. Haynie, 25 S.W.2d 502; 12 C. J. 639. (3) The acts and the words of the husband regarding his wife's property are no more binding on her than they would be on an entire stranger. Baker v Thompson, 114 S.W. 498. (4) The money, being originally the separate estate of the wife, furnished a good consideration for the transfer to her as against the creditors of her husband. Cooper v. Standley, 40 Mo.App. 138; Citizens' Bank v. Burrus, 77 S.W. 748. (5) A husband may manage separate property of his wife without necessarily subjecting it or profits arising from his management to claims of his creditors. Clapp v. Kenley, 210 S.W. 10. (6) The simple taking of the deed without an intention on the part of the grantee to defraud creditors was not sufficient to avoid it. Implement Co. v. Ritchie, 60 S.W. 87; Ulrich v. Pierce, 233 S.W. 401. The evidence in this case falls short of showing any intent to hinder and delay creditors, and the whole case, being based on the admission of evidence not admissible, should be reversed.

James Booth for respondent.

(1) If defendant Matilda Williams bought the Owensville property here in controversy, and it was paid for with the moneys of her husband, then the conveyance complained of would be fraudulent as to the creditors of D. E. Williams, and his wife would merely hold the legal title as trustee for him, subject to be divested and subject to the lien of plaintiff's judgment. East St. Louis Ice & Cold Storage Co. v. Kuhlman, 238 Mo. 685; Garrett v. Wagner, 125 Mo. 450; Patton v. Brag, 113 Mo. 595. (2) Such a conveyance would be voluntary, presumptively fraudulent, and the burden would be on the grantee to establish its validity. Miller v. Allen, 192 S.W. 167; Scraff v. McGaugh, 205 Mo. 344; Vandeventer v. Goss, 116 Mo.App. 316. (3) While fraud is never presumed, yet it may be established by facts and circumstances. Fraud is never proclaimed from the housetops, nor are fraudulent intentions reduced to writing and given to the public press; fraudulent intentions and fraudulent acts have their birth and origin in darkness, and are fathered by a desire to do wrong. Ofttimes the parties attempt to dress them with adornments of honesty, but behind it all there may be found unconscious blazing which marks the real pathway followed by plaintiffs. Farmers Bank v. Handley, 9 S.W.2d 891; St. Francis Milling Co. v. Sugg, 206 Mo. 148; Massey v. Young, 73 Mo. 260. (4) Defendants do not usually enter into a scheme to hinder, delay and defraud creditors and later, when called into court to explain their acts, openly admit the facts; and such has been the experience of both the Bench and the Bar, so that, after all, in these cases, we are forced to take the facts and circumstances as they appear and from them attempt to draw rational and reasonable inferences and conclusions. St. Francis Milling Co. v. Sugg, supra. (5) If the consideration for the transfer to the wife comes from the husband wholly or in part the property may be reached by his creditors. 27 C. J. 645, sec. 410. (6) It was a question of fact for determination by the trial court whether the husband was really managing his wife's business or merely carrying on his own. Lochman v. Martin, 139 Ill. 450; Ladd v. Muwell, 34 Ind. 107; Knapp v. Smith, 27 N.Y. 277; Osborne v. Wilks, 108 N.C. 651. (7) Any equitable right or interest which may be reached in equity by a creditor's suit may be the subject of a fraudulent conveyance and may be reached and subjected by creditors in equity or by statute in some jurisdictions, even at law, in the hands of the fraudulent transferees. 27 C. J. 432, sec. 47. (8) If a transfer is made by a debtor in anticipation of a suit against him or if a suit has been begun or while it is pending against him, as here, it is a badge of fraud and especially so if it leaves the debtor without any estate or greatly reduces his property. 27 C. J. 488, sec. 139. (9) A transfer between near relations may, in connection with other circumstances, carry a suggestion of fraud or even furnish satisfactory proof of fraud. 47 C. J. 495, sec. 153; Renney v. Williams, 89 Mo. 139. (10) The failure of the deed to the wife to show the true consideration was of itself a badge of fraud. 27 C. J. 495, sec. 155. (11) The fact that there was a studied effort of defendants to make their testimony consistent, although without success, in view of the facts in this case, is a badge of fraud. Bank v. Rennick, 246 Mo. 500; Moore on "Facts," secs. 893, 1059. (12) In determining the correctness of the decision of the trial court this court may properly take into consideration the relationship of the parties, the manner in which their business was conducted before and after the deed, and the continued exercise of authority of Dr. Williams over the property after the deed was made, in determining as to the existence of fraud. Barker v. Nunn, 275 Mo. 572; Cole v. Cole, 231 Mo. 255. (13) The trial court properly admitted in evidence the depositions of defendants taken in said cause as an admission against their interests. Maccaslin v. Mullins, 17 S.W.2d 685.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

Defendants are husband and wife. This is an appeal from a decree of the Circuit Court of St. Louis County, setting aside a conveyance of certain land in Owensville, Gasconade County, standing in the name of defendant, Mrs. Matilda Williams, and subjecting it to a lien of a judgment of plaintiff against her husband, defendant, D. E. Williams. The suit was begun in Franklin County, but on application of defendants the venue was changed to St. Louis County.

The petition charges: Defendant D. E. Williams sold a tract of land owned by him, situated in St. Louis County and containing 42.85 acres for $ 25,000, and thereupon defendant Williams became indebted to plaintiff in the sum of $ 1,250 for services rendered in procuring the purchaser. Plaintiff on February 18, 1926, sued defendant Williams in the Circuit Court of Franklin County, for the debt alleged, and on May 18, 1926, while the action was pending, and when both defendants had knowledge of the pendency of the action, defendant Williams bought from Robert J. Horsefield, Jr., and wife, for a consideration of $ 15,000, certain described real estate situated in the city of Owensville, Gasconade County, Missouri, and known as the Gasconade Theatre. Plaintiff recovered judgment in the sum of $ 1,286.25 upon the debt sued for in the Circuit Court of Franklin County on August 12, 1926. The sum of $ 500 has been paid upon the judgment, but the balance was due and unpaid. A transcript of the judgment was of record in Gasconade County, and the petition alleged that in equity and good faith the judgment was a lien upon the Gasconade Theatre property, it being charged that the defendants, for the purpose of hindering, delaying and defrauding the creditors of defendant, Williams, and particularly plaintiff, had caused the Horsefields to convey the theatre property to defendant Matilda Williams. The petition further charged that D. E. Williams was insolvent and that plaintiff had no adequate remedy at law. The prayer was that the deed from the Horsefields to defendant Matilda Williams be set aside and that the theatre property be made subject to the lien of plaintiff's judgment.

The answer admitted that defendants were husband and wife, and denied all other allegations of the petition.

The judgment in favor of plaintiff and against defendant Williams was proved by the records. By deeds and by records, plaintiff established these further facts, which were not disputed: On April 16, 1918, Valley Park Realty Company by its trustee, sold a tract of land in St. Louis County to Warren W. Goran, for the consideration of $ 9,960. On May 31, 1921, defendant D. E. Williams, as lessor, leased to Goran, as lessee, for a term of twenty years, what was described in the indenture as Williams' undivided one-half interest in the land which Goran had acquired in 1918. It was a white sand mining lease. Goran was to work the property and was to pay Williams a royalty of five cents per ton for all sand mined, removed and sold. On August 21, 1925, Goran and wife by deed conveyed to defendant Williams 42.85 acres of the St. Louis County land, which Goran had bought in 1918 and which Williams had leased to Goran in 1921. On December 21, 1925, defendants D. E. Williams and Matilda Williams, his wife, conveyed the tract of 42.85 acres of land, which Williams had acquired from Goran, to Hardstone Brick & Tile Company for a consideration of $ 25,000. On May 18, 1926, Robert J. Horsefield and wife, by deed, conveyed to defendant Matilda Williams, the Gasconade Theatre in Owensville, Gasconade County, upon which plaintiff has sued to establish a lien for the satisfaction of his judgment. Defendant, Williams, admitted his insolvency by testifying that his total worth was $ 1.15.

On this record it would seem that a decree would go as a matter of course. But defendants contend that the money with which defendant Dr. Williams (a practicing physician)...