Essey v. Bushakra

• Decision Date: 08 June 1923
• Docket Number: No. 23196.,23196.
• Citation: 252 S.W. 459,299 Mo. 147
• Parties: ESSEY v. BUSMAK BA et al.
• Court: Missouri Supreme Court

252 S.W. 459

299 Mo. 147

ESSEY v. BUSMAK BA et al.

No. 23196.

Supreme Court of Missouri, Division No. 1.

June 8, 1923.

Appeal from Circuit Court, Jackson. County; O. A. Lucas, Judge.

Suit in equity by Mussey Essey against John Bushakra and others, to set aside certain deeds. From a judgment refusing to set aside a note and deed of trust executed to Salima Bushakra, one of the defendants, plaintiff appeals. Reversed with directions.

A. N. Gossett and Stubenrauch & HaItz, all of Kansas City, for appellant.

Haff, Meservey, German & Michaels and Samuel D. Newkirk, all of Kansas City, for respondents, Salima Bushakra and Charles W. German, trustee.

SMALL, C. I.

Appeal from the circuit court of Jackson county.

Suit in equity, by plaintiff, a judgment creditor of John Bushakra, and his sons, Charles and Sam Bushakra, to set aside certain deeds to certain lots on Brooklyn avenue in Kansas City, Mo., made by said John Bushakra and wife, Salima Bushakra, and other defendants claiming under them, and a first deed of trust on said property in favor of said Salima, for $3,200, and a second deed of trust for $2,800, in favor of said John Bushakra.

The petition, among other things, states: That, on the 11th day of October, 1920, the sheriff of said Jackson county, under a writ of execution issued on plaintiff's judgment, had levied on John Bushakra's interest in said real estate, and that thereafter, with knowledge of said levy, defendants Robertson and Walker pretended to purchase said $2,800 note from said John Bushakra, and pretended to pay him $1,000 therefor. That defendant Beatrice Yeager and her predecessors in title, Kathleen Armour Long and Vickry Prine, pretended to hold title to said property, but took it for the purpose of cheating plaintiff in the collection of his judgment, and her and their claim is and was fraudulent and void as to plaintiff.

The answer of defendant John Bushakra admits that he is the beneficial owner of the property, but denies every other allegation of the petition.

The answer of defendant Salima Bushakra and the trustee in the deed of trust securing her $3,200 first mortgage note puts the al. legations of the petition in issue, and pleads that plaintiff's judgment was paid in full by taking a quitclaim deed for said property from said Beatrice Yeager, who claimed under Kathleen Armour Long, which deed recited that said real estate was conveyed to said Beatrice Yeager subject to the $3,200 deed of, trust in favor of defendant Salima Bushakra, both of which deeds plaintiff' caused to be recorded in the recorder's office; that by taking said deeds the plaintiff recognized the validity of the title of the parties making the same, and of the validity of said $3,200 deed of trust, and is estopped from denying that it is a valid lien on said real estate.

The reply put the new matter in issue, and further stated that plaintiff, being advised that a sale of said land, as prayed for in the petition, would be subject to a contingent dower right in the defendant Salima Bushakra, unless a voluntary conveyance from said Beatrice Yeager, mesne grantee of said defendants John and Salima Bushakra, could be had, plaintiff's attorney paid said Beatrice Yeager $275 for a quitclaim deed, with the express stipulation and agreement, recited in said quitclaim, that, by accepting said quitclaim deed, "the grantee herein and those claiming under him, do not acknowledge as binding or of any force or effect" the mortgage or deed of trust and $3,200 note of the defendant Salima Bushakra, but do "deny the validity of said mortgage deed of trust, and reserve the right to deny, contest, and defend against" the same.

The evidence showed that defendant John Bushakra and his wife, Salima Bushakra, were born in Syria, and they, with Charles and Sam Bushakra, sons of John Bushakra, by his first wife, came to Kansas City in about the year 1894, where they resided a year or so and then went to St. Joseph, Mo. The sons were then verging on young manhood. The stepmother, Salima, was much younger than her husband, John. They lived in St. Joseph about a year. The father and perhaps the sons with him owned and operated two fruit and candy stores. The father and his sons sold out their stores in St. Joseph and went to South America in 1897, and the wife and stepmother and her two children returned to her parents in Syria. In South America the father and sons engaged in business, and, on October 7, 1902, they accepted two bills of exchange in favor of Maksoud Bros. of Rio de Janeiro, due respectively March 7 and January 7, 1908, on which due dates, one with interest amounted to $1,202.65, and the other with interest amounted to $1,344.65; each bore interest at the rate of one per cent. per month from maturity. These bills of exchange were given for goods purchased. Before the maturity of said bills of exchange, some time in the year 1904, the father and sons sold out their business in South America, absconded, and returned, with some $6,000 or $7,000, the proceeds of such sale, to Kansas City, leaving said bills of exchange unpaid. About two weeks after they arrived in Kansas City, the wife and stepmother, Salima, also arrived in Kansas City. Soon afterwards, a grocery store, located at 532 Cherry street in Kansas City, was purchased for $2,000, and the title to this property was taken in the name of the wife, where it remained until September, 1920, when she sold it. In 1913, the property in controversy on Brooklyn avenue was purchased for $2,800, $500 of which was paid in cash; the balance being represented by a mortgage of $2,300, subject to which the title was taken. The title to this property was taken in the name of John Bushakra, the husband.

At the January term, 1916, Mussey Essey, assignee of the bills of exchange, brought suit thereon in the circuit court of Jackson county, against said John, Charles, and Sam Bushakra. The suit remained pending until the November term, 1919, when judgment was entered therein against said defendants for the sum of $6,137.50. On February 8, 1916, John Bushakra and his wife, Salima, made a voluntary conveyance of the property on Brooklyn avenue in question to Marjory Meglasson, with a recited (but no actual) consideration of $2,500. On the same day, she conveyed the property back to said Salima Bushakra, also Without any actual but a recited consideration of $2,500. At the time the property was thus transferred to her, the wife claimed that her husband owed her some money, and it was transferred to her on account of this claim, but also that her own children might inherit it all, which would not be the case if the title remained in the husband, as he had children by his first wife. Afterwards, in July, 1918, the wife executed a deed of trust on the property in favor of her husband for $2,800, which she testified she gave him as a gift in order to raise money to make a trip to the old country to visit his brother. This deed of trust, without being paid, was satisfied on the record May 21, 1920. On May 20, 1920, said defendant Salima Bushakra, her husband joining in the deed, conveyed said property to Vickry Prine, who executed to said defendant Salima Bushakra a promissory note for the Sum of $3.200, due in five years at 6 per cent., secured by deed of trust on said property, and defendant Robertson gave a check for $2,800 to defendant John Bushakra. The wife refused to make the conveyance, unless the husband got that much in cash, but the giving of the check was a mere formality, of which the wife probably knew nothing, but which was known by the husband and his son Sam, who took part In bringing about the transaction. On the next day, May 21, 1920, for the express, but no actual, consideration of $6,000, said Vickry Prine conveyed said real estate to Kathleen Armour Long, subject to said $3,200 deed of trust In favor of defendant Salima Bushakra. The grantee, Long, was a fictitious purchaser procured by the defendant Sam Bushakra. John Bushakra thereupon surrendered Robertson's check for $2,800, and said Kathleen Armour Long executed a note in his favor for $2,800, due in two years at 6 per cent., secured by deed of trust on said property, subject to the prior deed of trust of $3,200 in favor of defendant, Salima Bushakra. Afterwards, on the 21st day of June, 1921, for the express consideration of $1, but no actual consideration, said Kathleen Armour conveyed said property to Beatrice Yeager, subject, as stated in the deed, to both of said deeds of trust. This was also a fictitious transfer. Defendant Walker, on October 12, 1920, purchased said $2,800 note from defendant John Bushakra for $1,000.

After this suit was instituted, and before trial, the plaintiff took the deposition of the defendants John and Salima Bushakra, in which they both testified, in effect, that it was her money that purchased the Cherry street property; that she brought the money back from Syria with her, and that she had received it as an inheritance from her father and mother; that she owned and operated the grocery store at Cherry street from the time they bought it in 1904 until 1913, when they purchased the property in question on Brooklyn avenue, and; without her knowledge, at the instigation of his sons, the title was taken in the name of the husband, John Bushakra. But is was paid for with the money she made in her grocery store, and she bought and sold the merchandise, and herself attended to the work of running said grocery store, her husband, John Bushakra, being incapacitated by age from doing business. But the business was always done in his name, and he received and kept the money arising from it. During the same time, it appears that the two sons operated stores in Kansas City, the title to which was in their wives' names.

In her deposition, the wife said her parents gave her the money, and the husband; in his deposition, stated that she received it as an inheritance from her...