Fehlig v. Busch

• Decision Date: 19 November 1901
• Parties: FEHLIG v. BUSCH et al.
• Court: Missouri Supreme Court

65 S.W. 542

165 Mo. 144

FEHLIG v. BUSCH et al.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

FRAUDULENT CONVEYANCES — EVIDENCE — CONSIDERATION — RESULTING TRUST — ESTOPPEL — APPEAL — EQUITY.

1. At the time of a conveyance by defendant he owned unincumbered real estate of the value of $20,000, and other real estate of the value of $4,000, on which was an incumbrance of $1,500. He owned personal property of the value of $5,000, and was unmarried, and not entitled to any exemptions. At that time he had made a contract with plaintiff to build the foundation for a building on certain of his lots, and plaintiff had entered on the performance of the contract. Subsequently plaintiff obtained a judgment against defendant for the foundation, $14,010. Held, that the conveyance of the real estate by defendant was not fraudulent, as rendering him insolvent.

2. Where one is not insolvent, and a conveyance made by him does not render him so, such conveyance is not fraudulent as to creditors, although there be no consideration therefor.

3. A conveyance by one in whose name certain lots stood to one who had furnished the price originally paid for them is not fraudulent as to the creditors of the grantor.

4. Where plaintiff made improvements on land held in the name of a priest, and sought to subject the land to plaintiff's judgment for the work, and the defense was that the property was that of the church, a contention that the church was estopped to set up the claim against plaintiff was without merit, it appearing that plaintiff raised no such issue in the trial court, and in an equity suit between himself and the church he had averred that the lots belonged to the church.

5. Where plaintiff does not plead an estoppel in the trial court, he cannot avail himself of the same on appeal.

6. Plaintiff contracted with a priest to build a foundation for a church, and before he had done any substantial part of the work he had constructive notice that certain lots had been transferred by the priest to the archbishop. He completed his contract, and obtained a judgment against the priest for $14,010, which was made a lien on the lots, and caused the same, with such improvements and others worth $3,000, to be sold, and purchased them for $500. Afterwards he sold the lots and improvements to the church for $10,000. Under his general judgment he caused to be sold and purchased for $70 several other lots on which there was a residence worth $4,000, and also other real estate worth $5,000. Held, that in a suit by plaintiff to subject to the payment of his judgment the lots conveyed to the archbishop on the ground that the same were conveyed fraudulently, the facts showed his cause lacking in equity.

Appeal from St. Louis circuit court; Jas. E. Withrow, Judge.

Suit by Frank Fehlig against Michael Busch and the Holy Ghost Parish Association. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Daniel Dillon and Harry S. Shaw, for appellant. C. A. Schnacke and Lubke & Muench, for respondents.

MARSHALL, J.

This is a bill in equity to subject lots 21, 22, 23, and 26 and a strip 15 feet wide by about 140 feet long, lying east of lot 23, in city block 3,719 of the city of St. Louis, to the payment of the balance of some $14,000 alleged to be due on a judgment in favor of the plaintiff and against the defendant Busch. The judgment of the circuit court was in favor of the real defendant, the Holy Ghost Parish Association, and the plaintiff appealed.

The material averments of the pleadings and the substance of the facts shown on the trial are so fairly and clearly stated by attorneys for the respondent the Holy Ghost Parish Association that it is a real pleasure to adopt their statement. That statement, when read in connection with the following plat of the premises, referred to in the statement, make the controversy in this case very plain. The plat is as follows:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The statement of respondent's attorneys is as follows:

"Statement.

"In his petition plaintiff alleges, in substance: That in January, 1892, he entered into a contract with defendant Busch for the erection of the rock foundation of a church building, and that thereafter, under this contract, he erected said foundation, and, being unable to get his pay for his work, he commenced suit against said Busch and John J. Kain, who at the time held title to lots 24 and 25 of block 3,719 of city of St. Louis, being the ground on which the foundation was erected; and that in December, 1895, he recovered a judgment for $14,010, general against said Busch, and special against said lots, establishing a mechanic's lien against them; and that he caused execution to be issued against said Busch, under which he levied upon and sold all the property of said Busch that could be found; and that he also caused said lots 24 and 25 to be sold under said judgment establishing said mechanic's lien; and after applying the proceeds of these sales there remained unpaid of said judgment $13,593.24; and that on April 8, 1892, said Busch, without consideration, conveyed lots 21, 22, 23, 24, 25, and 26 in said block, and a strip of ground 15 feet wide, to Peter Richard Kenrick. That by said conveyance said Busch became insolvent, and the same was a fraud on plaintiff. That afterwards the title of said Kenrick, by decree of court became vested in John J. Kain, who afterwards, on February 20, 1897, without any consideration, conveyed said lots 21, 22, 23, and 26 and said strip to the Holy Ghost Parish Association, a corporation. The petition then alleges that by reason of the premises said lots 21, 22, 23, and 26 and said strip were and are in equity the property of said Busch, and subject to the lien of said judgment. The prayer is that said conveyance of April 8, 1892, from said Busch to said Kenrick, be declared fraudulent as to plaintiff, and that said subsequent conveyances from said Kenrick to Kain and from Kain to said parish association be set aside, and that said lots be subjected to the payment of said judgment and for general relief. The answer of the Holy Ghost Parish Association admitted that it was a corporation, and admitted the making of the conveyances mentioned in the petition, but denied all other averments, allegations, and conclusions in the petition contained. The answer then alleged specifically, in substance, as follows:

"First. That at the time of the conveyance from said Busch to Kenrick said Busch was solvent, and was the owner in his own name of unincumbered real estate of the value of $20,000, and of other real estate of the value of $4,000, incumbered for $1,500, and of personal property of the value of $5,000; and that he continued to be such owner and held said property in his open and exclusive possession till July, 1894; and that said Busch during this time was single and unmarried, and not entitled to any exemption.

"Second. That in 1879 said Busch became pastor or rector of the parish of the Holy Ghost, an unincorporated religious congregation or society in the city of St. Louis, and remained such pastor till 1896; and from 1879 till April 5, 1892, said Busch, as said pastor, received from said congregation large sums of money, aggregating more than $25,000, to be expended for said congregation in promoting its welfare and providing suitable accommodations for religious worship; and that said Busch did not apply said moneys as directed and intended by said congregation, but converted a large part of same to his own gain and profit; and that said Busch in part payment and restitution of said moneys so diverted by him conveyed said lots to said Kenrick, who was then archbishop of the diocese of St. Louis, in trust for said congregation; and that said Kain became the successor of said Kenrick as archbishop, and held said lots subject on same trusts; and in execution of said trust and at the request of said congregation conveyed said lots to said Holy Ghost Parish Association, which is composed of the same persons, with others, who contributed said moneys to said Busch as aforesaid; and that said lots so conveyed by said Busch were not worth at the time of said conveyance as much as the amount of the indebtedness of said Busch to said congregation.

"Third. That under his said judgment against said Busch plaintiff had caused to be levied on and sold as the property of said Busch lots 2, 3, 4, and 5 and lots 12, 13, and 14 of said block, and at said sale had bought said lots at unconscionably low and inadequate prices, aggregating only $70, whereas they were worth, in excess of all incumbrances on them, the sum of $8,830; and that under his mechanic's lien judgment he caused said lots 24 and 25 to be sold with the improvements thereon, and bought the same for $500, whereas they were worth $10,000, and plaintiff afterwards sold them to this defendant for $10,000 cash; and that plaintiff has received out of the sales of said property an amount in excess of his said judgment against said Busch.

"Fourth. That after plaintiff had bought said lots 24 and 25 under execution against said Busch as aforesaid, viz. in 1897, this defendant bought of plaintiff said lots 24 and 25 for the sum of $10,000 cash. That said lots 21, 22, and 23 and said strip lie immediately in the rear of lots 24 and 25, and lot 26 adjoins lot 25 on the north; and this defendant did not want and would not buy lots 24 and 25, or either of them, unless it also owned said lots 21, 22, and 23, and 26, and said strip. And plaintiff, for the purpose of inducing and influencing this defendant to buy said lots 24 and 25, assured this defendant that it had good title to said lots 21, 22, and 23, and 26, and said strip. There was at that time a deed of trust covering said lots 21, 22, and 23, and also some lots owned by plaintiff, and there was a suit pending between this defendant and plaintiff to determine how...