East St. Louis Ice & Cold Storage Co. v. Kuhlmann

• Decision Date: 23 December 1911
• Citation: 142 S.W. 253,238 Mo. 685
• Parties: EAST ST. LOUIS ICE & COLD STORAGE CO. et al. v. KUHLMANN et al.
• Court: Missouri Supreme Court

142 S.W. 253

238 Mo. 685

EAST ST. LOUIS ICE & COLD STORAGE CO. et al. v. KUHLMANN et al.

Supreme Court of Missouri. Division No. 1.

December 23, 1911.

1. FRAUDULENT CONVEYANCES (§ 104)—CONVEYANCES FROM HUSBAND TO WIFE.

Though a husband may honestly support his wife and children, and thereby interfere with the rights of his creditors, he may not use the duty to support his wife and children as a cover for fraud against creditors.

2. FRAUDULENT CONVEYANCES (§ 104) — TRANSACTIONS BETWEEN HUSBAND AND WIFE.

Transactions between husband and wife attacked by the husband's creditors as fraudulent will be closely scrutinized.

3. FRAUDULENT CONVEYANCES (§ 95) — TRANSACTIONS BETWEEN HUSBAND AND WIFE.

Where a husband paid the entire consideration for real estate conveyed to his wife, while a third person held an unsatisfied judgment against him, and when another creditor's claim was about to be put in judgment, the transaction was a gift to the wife, and constructively fraudulent as to creditors.

4. FRAUDULENT CONVEYANCES (§ 242) — TRANSACTIONS BETWEEN HUSBAND AND WIFE—DEFENSES.

A husband, who repudiated a trust in property, conveyed to him in favor of his children, and exchanged it for other property, title to which he took free from any trust, could not rely on the trust, and thereby prevent the invalidity of a transaction whereby the property so acquired was in turn exchanged for other property, the legal title to which was conveyed to his wife in fraud of creditors.

5. FRAUDULENT CONVEYANCES (§ 105) — TRANSACTIONS BY WIFE THROUGH HUSBAND'S AGENCY—VALIDITY.

Where an insolvent debtor conducted a business in his wife's name by himself as agent, furnished the money for the business, and the wife had no financial interest in the business, the profits of the business belonged to the husband, and the act of the husband in using the profits to acquire real estate, the legal title to which was taken in the name of his wife, was fraudulent as to his creditors.

6. TRIAL (§ 76)—RECEPTION OF EVIDENCE—OBJECTIONS—TIME TO MAKE.

An objection to the introduction of testimony because of the insufficiency of the petition is too late when made for the first time after substantial testimony has been admitted, the objection being required to be made at the first opportunity.

7. PLEADING (§ 428)—PETITION—SUFFICIENCY AS AGAINST OBJECTIONS TO INTRODUCTION OF TESTIMONY.

An objection at the trial to the introduction of testimony, because of the insufficiency of the petition, will not be sustained merely because of a want of certainty in the petition, or for informality in stating an essential fact, or because a cause of action is defectively stated, but such an objection is available only where the defects in the petition are fatal because the petition lacks essential averments to a cause of action.

8. PLEADING (§ 428)—PETITION—SUFFICIENCY AS AGAINST OBJECTIONS TO INTRODUCTION OF TESTIMONY.

A petition in a judgment creditor's suit to reach real estate in the name of the debtor's wife which alleges that the debtor has no other property out of which the judgments can be satisfied, that the conveyances assailed were to defraud the creditors, that the title to the property was covered up to prevent the collection of the judgments, and that unless the property can be reached, the judgments must remain unsatisfied, sufficiently alleges as against an objection to the admission of testimony, that the debtor was insolvent at the time of the transfers complained of, and that the creditors have exhausted their remedies at law.

9. APPEAL AND ERROR (§ 169)—QUESTIONS REVIEWABLE—QUESTIONS NOT RAISED IN TRIAL COURT.

A point not raised in the trial court cannot be raised on appeal.

10. APPEAL AND ERROR (§ 1051)—HARMLESS ERROR—ERRONEOUS ADMISSION OF EVIDENCE.

The error, if any, in admitting evidence of a fact established by other evidence, and conceded throughout the trial, is harmless.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by the East St. Louis Ice & Cold Storage Company and others against Herman H. (alias Herman) Kuhlmann and others. From a judgment for plaintiffs, defendant named and his wife appeal. Affirmed.

Hiram N. Moore, for appellants. L. Frank Ottofy and John T. Fitzsimmons, for respondents.

LAMM, J.

On May 17, 1907, the Storage Company, the Brewing Company, and Ottofy, three judgment creditors of Herman Kuhlmann, united in a creditors' bill, suing him and others in the circuit court of St. Louis. The general nature and object of which suit was to subject two tracts of ground in St. Louis to three judgments aggregating a few hundred dollars. The record title to said tracts was in the defendant Lillian, wife of Herman Kuhlmann. The bill alleges that Herman, paying the consideration, caused the title to be put in his wife by conveyances made with the intent to hinder, delay, and defraud his creditors. At the hearing, nisi, a decree going for plaintiffs, the Kuhlmanns in due time and apt form appeal. The rights of the other defendants (respectively trustees in two deeds of trust in the nature of mortgages and beneficiaries therein) are not infringed by the decree. Accordingly they abide it. To work a reversal appellants (1) assail the bill, (2) claim error at the trial in admitting certified copies of two deeds offered in evidence by plaintiffs, and (3) contend that the decree is for the wrong party on the merits.

Attending to the facts, the case made is this: The first tract to be charged is the east half of a certain lot 6, fronting 25 feet on the north side of Madison street in the city of St. Louis, more particularly described by metes and bounds in the bill. For convenience let us call it, passim, the Madison tract. This parcel stands incumbered of record by a deed of trust securing $1,000 loaned the Kuhlmanns in 1904. The second tract to be charged is three contiguous lots fronting 100 feet on the south side of Cass avenue in said city, more particularly described by metes and bounds in the bill. For convenience let us call it, passim, the Cass tract. It stands incumbered of record by a deed of trust of date April 15, 1905, securing an indebtedness at the time of the trial of $5,000 purchase money.

There is no dispute but that the value of the Cass tract is $7,700. The value of the Madison tract is somewhat dark. As near as we can make out it may be put at, say, $2,000 for the purposes of the case. Kuhlmann's present wife took title to the Madison tract by a deed from one Adolph Mast of date the 24th of May, 1898. She took title to the Cass tract on April 15, 1905, through a deed from one Becker. Both of these deeds were promptly spread of record. These two conveyances are the ones sought to be opened up so as to let in respondents' judgments as charges on both tracts. On the 7th day of May, 1906, the Brewing Company took judgment against Herman Kuhlmann, before a justice of the city of St. Louis, for $130 and costs. A transcript thereof was filed in the office of the clerk of the circuit court of said city on the 1st day of April, 1907, showing, inter alia, a due constable's nulla bona return on a justice execution on December 11, 1906.

On the 10th day of February, 1899, the Storage Company took judgment against Kuhlmann before another justice of said city for $200. A transcript thereof was filed in the office of said clerk on April 25, 1899, showing, inter alia, a due constable's nulla bona return on a justice execution in March, 1899.

On the 29th of March, 1897, Ottofy took judgment for $100 against said Herman Kuhlmann before another justice of said city on which execution issued and a due constable's return of nulla bona came in thereafter on June 27, 1897. A transcript of this judgment was presently filed in said clerk's office. This judgment was revived in March, 1907, in due form by a proceeding before the successor of the justice rendering it originally. A transcript of the revived judgment, thereafter in March, 1907, was also filed in the office of said clerk. Presently a transcript execution was issued thereon by said clerk, and on March 26, 1907, a levy was made on said Madison and Cass tracts, which execution was returned by the sheriff, on the order of Ottofy, unsatisfied and without sale of the property levied upon. Prior to the revivor a transcript execution was issued by the circuit clerk in 1900, and in August of that year the Madison tract was levied upon, but, by order of Ottofy, the execution was returned by the sheriff without a sale of the property and unsatisfied. (Nota bene: There is no question of homestead raised by appellants, nor does the testimony uncover or tend to establish a homestead right as against the complaining judgment creditors.) Said judgments from that day to this remain unsatisfied in whole or in part. At the time Kuhlmann's said wife took title to the Madison tract there were other judgments against him, but whether they now are satisfied or outlawed by the flight of time is not disclosed.

It sufficiently appears that from May 24, 1898 (the date Mrs. Kuhlmann took title to the Madison tract) down to this day Kuhlmann stood under the flag of insolvency and claimed the protection and immunities peculiar to its folds. Never since has he carried any real estate in his name. His choses in action then or since existing, if any, disappear as any part of his visible assets, and if they reappear at all they do so apparently as part and parcel of hers. So that he then became and ever since remained independently poor as to his creditors, beggared as to them to all outside appearances, and without a particle of visible property subject to legal process. It sufficiently appears, also, that if his complaining creditors have any remedy it is in equity. Whether such remedy exists depends on conclusions to be drawn from a close and discriminating judicial scrutiny of the scheme whereby Kuhlmann thenceforth filled the alleged office of agent for his wife...