Emlet v. Gillis

• Decision Date: 12 August 1933
• Docket Number: No. 31127.,31127.
• Citation: 63 S.W.2d 12
• Parties: EMLET v. GILLIS et al.
• Court: Missouri Supreme Court

63 S.W.2d 12

EMLET v. GILLIS et al.

No. 31127.

Supreme Court of Missouri, Division No. 2.

August 12, 1933.

Motion to Modify Opinion and Decree Overruled September 4, 1933.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

Suit by Maude Emlet against John Richardson Gillis and another. From a decree for plaintiff, James D. Gillis appeals.

Affirmed.

E. H. Wayman, of St. Louis, for appellant.

Barker, Durham & Drury and Gilbert L. Whitley, all of St. Louis, for respondent.

WESTHUES, Commissioner.

This is an appeal from a decree of the circuit court of the city of St. Louis setting aside a conveyance of certain real estate dated the 24th day of August, 1927.

Defendant John Richardson Gillis and defendant appellant, James D. Gillis, are brothers. They will be referred to in the course of the opinion as John R. and James D. John R. resided in the state of California and James D. in the city of St. Louis, Mo.

Respondent, Maude Emlet, was the former wife of John R. They were divorced by a decree of the court a number of years prior to the death of the mother of John R. John R. was indebted to respondent on a note of $5,000, dated September 9, 1913.

Julia Gillis, the mother of defendants, died August 14, 1927. By the last will and testament of the mother the property in controversy was devised to John R. and James D. in equal portions. Within a few days after the funeral, John R. transferred by warranty deed all of his title in the property to James D. and returned to the state of California. Soon thereafter respondent brought a suit in attachment against John R. on the note held by her. In this suit the interest of John R. in the property attempted to be conveyed by the deed here in question was attached. The attachment was sustained, and respondent was given a judgment in the sum of $9,193, which was declared to be a lien against the interest of John R. in the property. Respondent then filed this suit to set aside the deed by which John R. transferred his property to James D.

The petition charged generally that John R. transferred his property for the express purpose of hindering, delaying, and defrauding plaintiff and of preventing her from collecting her claim against him. The petition charged James D. to have conspired with John R. and to have aided him in his purpose to defraud respondent. Appellant filed an answer denying the fraud charged against him, and alleged that he had purchased the property in good faith and had paid full value therefor. Appellant also prayed for affirmative relief to enjoin the respondent from bringing any other action to set aside the deed or to question appellant's title. The trial court found for respondent, and by its decree set aside the deed and denied the relief prayed for in appellant's answer. From this judgment James D. appealed.

Appellant contends in this court that there was no evidence upon which the trial court could find that he was a party to the fraud. Appellant in his points and authorities correctly states the rule of law applicable to this case as follows: "To impeach a sale for fraud, it having been made for a valuable consideration, it is necessary for respondent to show that grantor's purpose in selling the land was to defraud and cheat his creditors and that his grantee participated in the fraud." It is admitted in the evidence that the real estate in question was the only property owned by John R. He was a nonresident of the state, and the transfer to his brother placed all of his property, except perhaps a small amount of personal property or cash he was to receive from the estate of his mother, beyond the reach of respondent. Respondent's evidence tended to prove the following: Shortly after John R. arrived in St. Louis, from the state of California, to attend his mother's funeral he went to the home of his mother. Mrs. Susie Bengel, a witness for plaintiff, made a visit to the home on this occasion, and found John R. and James D. in a room together. She testified that the two brothers were looking over the will of their mother, and that she heard John R., in the presence of James D., make the remark that he would have to get busy to keep Maude (that is, respondent) from interfering or coming in for something. Appellant testified that he agreed to buy John R.'s interest in the property the day after his mother's funeral. No price was agreed upon at that time. Fearing, however, that respondent might have some rights in the matter, legal advice was sought. Appellant, as a witness, in answer to questions by his attorney, testified as follows:

"Q. Just state, in your own words, if you will, just what occurred there? A. Well, he had told me that, living out in California, he didn't want anything to do with any property here in St. Louis; that there would be a lot of discussion and things would come up that maybe he wouldn't want — he won't like the way I fix it up, so he just decided that he would get rid of it and sell it. He had told me that he was indebted to Mrs. Emlet. That is why we came down to see you so if I had bought the property, his part of it, whether Mrs. Emlet could come back onto me for any of it.

"Q. In the event you took his interest? A. In the event that I bought his part.

"Q. Yes. And what did I tell you at that time? A. You told us that she surely could if he had given the property to me.

"Q. Yes. A. But if I had bought the property in a legitimate manner and straightforward, that nobody could touch it.

"Q. And subsequent to that conference and that advice was there any discussion about your buying the property — as to whether you could take it over or not? A. Yes; there was discussion about that, and I said that I didn't have the money to buy it, so then you said maybe you could negotiate a loan on it.

"Q. Yes. And was a loan subsequently negotiated? A. It was, sir.

"Q. Through whom? A. Through the Mississippi Valley Trust Company.

"Q. And what became of the proceeds of that loan? A. The proceeds — part of it went to pay the Citizens National Bank. There was a deed of trust on it for twenty-five hundred dollars. They were paid their money, and the balance went to my brother."

Questions by the court:

"The Court: Q. You knew this note was outstanding? A. I knew there was an indebtedness; yes, sir.

"Q. What conversation did you have in reference to that before you purchased the property? A. Only that my brother told me that he was indebted to his first wife, and we would go and see a lawyer about it.

"Q. Did you take any steps, or protections, to protect yourself against that obligation? A. I went to Mr. Wayman and asked him if it would be all right for me to buy my brother's interest, and whether anybody could touch it, and he said, `Absolutely no.'

"The Court: All right."

After the attorney had advised the defendants that the transfer could be legally made if James D. bought and paid for the property, negotiations were commenced to obtain a loan to pay off a $2,500 deed of trust against the property and to secure funds to pay John R. A. M. White, an appraiser of the Mississippi Valley Trust Company, appraised the property for defendants, and reported that its loan as well as its sale value was $17,000. John R.'s interest in the property was then figured on that basis; that is, his...