Ebert v. Myers

Decision Date20 July 1928
Docket NumberNo. 26767.,26767.
Citation9 S.W.2d 1066
PartiesHERMAN EBERT v. Ns H. MYERS and OLIVIA MYERS, Appellants.
CourtMissouri Supreme Court

Appeal from Audrain Circuit Court. Hon. Ernest S. Gantt, Judge.

AFFIRMED.

W.W. Bolls for appellants.

(1) Fraud must be proved and cannot be presumed. Robinson v. Dryden, 118 Mo. 538; Renney v. Williams, 89 Mo. 86; Chapman v. Mcllrath, 77 Mo. 44; First Nat. Bank v. Woelz, 197 Mo. App. 686; Stahlhuth v. Nagel, 229 Mo. 570; Wall v. Beedy, 161 Mo. 625. (2) The grantee in a fraudulent deed must have knowledge of the fraudulent intent and participate therein. Robinson v. Dryden, 118 Mo. 535; Wall v. Beedy, 161 Mo. 625. (3) An insolvent debtor has the right to prefer one or more of his creditors to the exclusion of the others. Baker v. Harvey, 133 Mo. 653; Goddard v. McCune, 122 Mo. 431; Wood v. Porter, 179 Mo. 156; Pew v. Price, 251 Mo. 615. (4) While a court of equity will scan the transaction with jealous eyes, preference and relationship alone will not afford sufficient evidence of fraud. Baker v. Harvey, 133 Mo. 653; Kincaid v. Irwin, 140 Mo. 615; Black v. Epstein, 221 Mo. 296; Stahlhuth v. Nagle, 229 Mo. 570. (5) Possession by grantor after conveyance is only an indication and not proof of fraud. Robinson v. Dryden, 118 Mo. 538; Wall v. Beedy, 161 Mo. 625; Baker v. Harvey, 133 Mo. 653. (6) Dclay in recording instrument is no evidence of fraud except as to subsequent creditors. Clark v. Lewis, 215 Mo. 173; Hord v. Harlan, 143 Mo. 469; Litschigi v. Gottlich, 247 Mo. 53; Jones v. Levering, 116 Mo. App. 377; Wall v. Beedy, 161 Mo. 625; Mayhew v. Tobien, 246 Mo. 288. (7) A creditor cannot complain of a disposition made of the homestead. Baker v. Harvey, 133 Mo. 653; Pococke v. Peterson, 256 Mo. 520; Armour v. Lewis, 252 Mo. 569; Stam v. Smith, 183 Mo. 464. (8) The conveyance to Olivia Myers made at the request of her brothers and sisters who, along with her had furnished the purchase price, created a resulting trust in her in favor of all said parties. Condit v. Maxwell, 142 Mo. 274; Cloud v. Ivie, 28 Mo. 579; Baumgartner v. Guessfield, 37 Mo. 36; Hall v. Hall, 107 Mo. 101; 14 Am. & Eng. Encyc. 226, Vol. 15, 1150-1170; Shaw v. Shaw, 86 Mo. 594. (9) A resulting trust can be established by parole testimony. Baumgartner v. Guessfield, 38 Mo. 36; Shaw v. Shaw, 86 Mo. 594; 15 Am. & Eng. Encyc. (2d) 1171. (10) The court had no jurisdiction to hear plaintiff's motion to determine interests in this cause, under Section 5863. Dalton v. Simpson, 270 Mo. 287; Grownsey v. O'Donnell, 272 Mo. 165. (11) The deposition of defendants taken by plaintiff and read in evidence, and uncontradicted, must be taken as true. Phelan v. Paving Co., 227 Mo. 711; Rolison v. Railroad, 252 Mo. 525.

Rodgers & Buffington for respondent.

(1) Defendants attempted to create by parol an express trust in the land conveyed, contrary to law, and which is void; and as an absolute conveyance to the grantee only it is fraudulent and void, because the value of said land far exceeded the alleged claim of the grantee sought to be satisfied. Bender v. Bender, 220 S.W. 930; Thomson v. Thomson, 211 S.W. 56; Hunter v. Briggs, 254 Mo. 62; Nebraska Co. v. Nebraska City, 14 Fed. 766; 39 Cyc. 104, 115, sec. 1; Green v. Cates, 73 Mo. 122. (2) The conveyance was made for the purpose of defeating the creditors of Ns Myers, and was made as a secret trust wherein defendant Myers reserved and procured to himself a beneficial interest in the property, all in fraud of his creditors. Black v. Epstein, 221 Mo. 310; Benne v. Schnecko, 100 Mo. 256; Baldwin v. Whitcomb, 71 Mo. 658; First Natl. Bank v. Woelz, 193 S.W. 617; Donovan v. Dunning, 69 Mo. 442; Roberts v. Barnes, 127 Mo. 416; Bank v. Powers, 134 Mo. 446; Martin v. Estes, 132 Mo. 402; 27 C.J. 598, sec. 343; Dry Goods Co. v. McLaughlin Co., 78 Mo. App. 585; King v. Moon, 42 Mo. 554; 27 C.J. 602, sec. 345. (3) The alleged indebtedness of defendant Myers to his children was fictitious and constituted no consideration for the conveyance in question. New England Natl. Bank v. Montgomery, 192 S.W. 941; Klauber v. Schloss, 198 Mo. 511; Crow v. Beadsley, 68 Mo. 438. (4) The proceedings had under Sec. 5863, R.S. 1919, to allow defendant Myers to safeguard his homestead exemption was right and proper. Sec. 5863, R.S. 1919; Fenwick v. Wheatley, 23 Mo. 643; Straat v. Rinkle, 16 Mo. App. 117; Beckner v. Rule, 91 Mo. 63; Daniels v. Peck, 288 S.W. 85.

WHITE, P.J.

The plaintiff brought this suit to set aside a conveyance by Ns Myers to his daughter. Olivia Myers, as in fraud of creditors.

The petition alleges that Ns Myers became indebted to plaintiff in July, 1915, in the sum of $575.70, and executed his note therefor; that August 4, 1924, plaintiff brought suit and later recovered judgment against the defendant Ns Myers in Audrain County Circuit Court for the debt and interest, amounting to $1001.31; that February 19, 1923, the defendant. Ns Myers, conveyed to his daughter Olivia Myers, certain real estate, described, in the city of Mexico, Missouri, for a recited consideration of one dollar and other valuable considerations; that in fact such conveyance was voluntary, without consideration, and made for the purpose of delaying and defrauding the creditors of Ns Myers: that by reason of such conveyance Ns Myers rendered himself wholly insolvent.

The defendants answered, admitting the indebtedness to plaintiff, the judgment and the conveyance by Myers to his daughter, but alleged that the conveyance was for a valuable consideration: that Ns Myers owed to her and her brothers and sisters various sums amounting in all to $4827.67, and that the conveyance was made for the payment of those debts. The children to whom those debts were listed were Mrs. Terrell Crews, $1324.27; James R. Myers, $324.47; Clara Le Sheeley, $796.14; Charles L. Myers, $610; Lawrence Q. Myers. $700.05; Martin T. Myers. $217.50, and Olivia Myers. $262.55.

It is alleged that these children of Ns Myers to whom he was indebted requested that he make conveyance, in payment of said debts, of the property described, to Olivia Myers, "as the person to hold the title to said land for their benefit, and surrendered to defendant. Ns Myers, their claims for said debts and look solely to the defendant, Olivia Myers, for the payment thereof, in so far as property will go towards such payment, and have no further claim upon said Ns Myers for said debts."

It is further alleged that the property was the homestead of Ns Myers upon which he and his wife resided, and was not worth the $4287.67, the amount of the debts to the children.

It is further alleged that at the time of the said conveyance the said Ns Myers was negotiating for a loan to pay back taxes and money borrowed for the purpose of paying taxes, and February 20, 1923, did execute a deed of trust for the purpose of procuring money to pay said back taxes, and said money borrowed for that purpose, and that Olivia Myers and the parties whom she represents knew all said negotiations for said loan and parts thereof, and knew that they were acquiring the property subject to said deed of trust. The deed sought to be set aside, although executed the day before the deed of trust, was not filed for record for a year and a half later.

The court rendered judgment March 26, 1925, holding that the conveyance by Ns Myers to Olivia Myers was fraudulent and void as to the plaintiff, found that the property described was a homestead of the grantor, of the approximate value of $4500, and adjudged that Ns Myers, under Section 5863, Revised Statutes 1919, should within ten days exercise the option to convey said property to the plaintiff on payment by plaintiff of $1500, the value of his homestead, or pay the said judgment; otherwise the property should be sold and the proceeds apportioned accordingly. Defendant appealed.

I. In the answer defendants attempt to set up a resulting trust in favor of Olivia Myers, her brothers and sisters, on the ground that the conveyance was made to her by her father in consideration of each of those children cancelling his or her debt, which it is claimed the father owed. It is Resulting conceded that there is no written evidence of any Trust. agreement of the parties to that effect, and appellant contends that therefore a trust resulted by operation of law; that Olivia therefore holds the property in trust for her brothers and sisters in proportion to the debt so surrendered, as their several parts of the purchase price.

A resulting trust arises by operation of law from the facts in the case and never by operation of any agreement; from what the parties do, and never what they agree to do. Where an alleged trust must be established by agreement the agreement must be in writing, under Section 2253, Revised Statutes 1919, and it cannot be a resulting trust under Section 2264. [Bender v. Bender, 220 S.W. 929; Thompson v. Thompson, 211 S.W. 52; Heil v. Heil, 184 Mo. l.c. 675; Price v. Kane, 112 Mo. 412.]

The appellant cites the case of Shelton v. Harrison, 182 Mo. App. 404, as nearest in point. In that case a number of persons entered into an agreement to purchase land for a fruit farm and one Harrison who originated the scheme collected the money from his associates in monthly installments to pay for the land, and purchased the land in his own name. It was held that a trust resulted. Judge STURGIS, who wrote the opinion, reviewed the authorities at length, and quoted (l.c. 417), from Pomeroy on Equity Jurisprudence, as follows:

"All possible trusts, whether of real or personal property, are separated by a principal line of division into two great classes: Those created by the intentional act of some party having dominion over the property, done with the view to the creation of a trust, which are express trusts; those created by operation of law, where the acts of the parties may have had no intentional reference to the existence of any trust — implied,...

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