Fehlig v. Busch

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

65 S.W. 542

165 Mo. 144

FRANK FEHLIG, Appellant, v. BUSCH et al

Supreme Court of Missouri, First Division

November 19, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Jas. E. Withrow Judge.

Affirmed.

C. A Schnake and Lubke & Muench for appellant.

(1) Plaintiff claims that the evidence shows that this conveyance made Busch insolvent; and it being voluntary on his part, it is void as to the plaintiff as one of Busch's creditors at the time. Potter v. McDowell, 31 Mo. 62. "It is sufficient in such cases to show that the grantor was in embarrassed or doubtful circumstances, and was not possessed of ample means, outside of the particular property, for the satisfaction of his then existing debts. When this condition of affairs is proven to exist, the conveyance in question -- although none but the purest motives may have prompted its execution -- becomes fraudulent in law and is open to the attacks of, and can be successfully assailed by, all who were creditors at the time of the execution of the conveyance, and whose debts remained unliquidated, and incapable of collection in the ordinary course of proceedings." Patten v. Casey, 57 Mo. 118; Hoffman v Nolte, 127 Mo. 120; Dunlap v. Mitchell, 80 Mo.App. 393; Eddy v. Baldwin, 32 Mo. 369; State ex rel. v. Koontz, 83 Mo. 323; Snyder v. Free, 114 Mo. 360; Lander v. Ziehr, 150 Mo. 403. (2) Defendant will claim that there is no evidence actual or presumptive, that the deed in controversy was made with any actual intent to defraud any one; on the contrary that all the facts and circumstances tend to show that Busch was only doing what he thought was right, and that the same was in accordance with the rules of the Catholic church, and under at least a moral obligation towards his congregation. But a moral obligation, or a secret trust, which may, under circumstances be a good and valid consideration and support a conveyance of real estate, will not be such if rights of creditors have intervened, or if such conveyance hinders or delays a creditor in the collection of a prior claim. St. George's Church Society v. Branch, 120 Mo. 226; Patten v. Casey, supra; Hoffman v. Nolte, supra; Dunlap v. Mitchell, supra; Bump on Fraud. Conv. (4 Ed.), sec. 243, p. 282. The deed being voluntary and without any pecuniary consideration moving from the grantee, it was void as to all existing creditors of the grantor. Jordan v. Buschmeyer, 97 Mo. 94; Lander v. Ziehr, 150 Mo. 403. (3) The validity of a voluntary conveyance depends upon the intent of the party making it, and not on the motive with which it was received. The proviso at the end of the statute only extends to transfers made upon a good consideration, and the only consideration which is good within the meaning of the statute is a valuable consideration. It is the innocent purchaser, and not the innocent donee, that is protected. It is the motive of the giver, and not the knowledge of the acceptor, that is to determine the validity of the transfer. Bump on Fraud Con. (4 Ed.), sec. 239, p. 280; Gamble & Johnson v. Johnson, 9 Mo. 605; St. George's Church Society v. Branch, 120 Mo. 245. (4) There is no evidence in the record upon which plaintiff is estopped from averring that the conveyance to Archbishop Kenrick was fraudulent as to him. Nor is there any evidence tending to show that Fehlig, by his words or conduct, willfully caused Father Huettler, or the defendant corporation, to believe the existence of a certain state of things, and induced them to act on that belief so as to alter their previous position. Johnson-Brinkmann & Co. v. Railroad, 126 Mo. 345; Newman v. Hook, 37 Mo. 207; Taylor v. Zepp, 14 Mo. 482; Brinkerhoff-Faris T. Co. v. Horn, 83 Mo.App. 114. The act, to operate an estoppel, must have been done with the intent that the other party should act upon it, and the latter was induced thereby to change his condition or relation to the subject-matter thereof to his injury. Brinkerhoff-Faris T. Co. v. Horn, supra; Burke v. Adams, 80 Mo. 504; Eitelgorge v. Home Bldg. Ass'n., 69 Mo. 52; Noble v. Blount, 77 Mo. 235; Acton v. Dooley, 74 Mo. 63; State v. Billington, 51 Mo.App. 252; Reichla v. Gruensfelder, 52 Mo.App. 43. (5) To make a matter res adjudicata there must be a concurrence of four conditions, viz.: First, identity of the subject-matter; second, identity of the cause of action; third, identity of the persons and parties; fourth, identity in the quality of the persons for or against whom the claim is made. Plaintiff submits that there is no identity of "the subject-matter;" secondly, no "identity of the cause of action." And he also submits that the judgment in the cause pleaded as a bar was not recovered on the real foundation of the present action, and not upon a full and complete hearing and determination of the merits thereof, but upon a matter foreign thereto. Winham v. Kleine, 77 Mo.App. 36; Garrett v. Greenwell, 92 Mo. 120; Short v. Taylor, 137 Mo. 519; Baker v. Lane, 137 Mo. 682; Dickey v. Heim, 48 Mo.App. 114; Clemens v. Murphy, 40 Mo. 121; Spradling v. Conway, 51 Mo. 51.

Daniel Dillon and Henry S. Shaw for respondent Holy Ghost Parish Association.

(1) Even if the conveyance of April 8, 1892, by Michael Busch to Peter Richard Kenrick, of lots 21, 22, 23, 24, 25 and 26 was without consideration, it could not, under the circumstances, be held to be fraudulent, and plaintiff would have no grounds on which to ask to have it set aside. Walsh v. Ketchum, 84 Mo. 427; Updegraff v. Theaker, 57 Mo.App. 45. (2) (a) The conveyance of April 8, 1892, by Busch to Kenrick was not voluntary. Bangs Milling Co. v. Burns, 152 Mo. 376; Schroeder v. Bobbitt, 108 Mo. 289, 293, 294; Ames v. Gilmore, 59 Mo. 543; (b) The evidence clearly shows that Father Busch held the legal title to the lots conveyed by him to Archbishop Kenrick by the deed of April, 1892, in trust for the Holy Ghost Parish; that they were bought with the money of the parish and were bought for the parish, and that the conveyance of them to Archbishop Kenrick was in pursuance of the purpose for which they were bought. Where the property conveyed was purchased with the money of the grantee, or where, for any reason, the property is held by the grantor in trust for the grantee, or where, under the facts, a court of equity would compel the grantor to convey the property to the grantee or to some one for the use of the grantee, then the conveyance can not be impeached as fraudulent or voluntary. Bump on Fraudulent Conveyances (4 Ed.), sec. 202, p. 230; Am. and Eng. Ency. of Law, (2 Ed.), p. 258; Payne v. Twyman, 68 Mo. 339; Wherry v. Hale, 77 Mo. 20; Erwin v. Holderman, 92 Mo. 333; Dozier v. Matson, 94 Mo. 333; Aultman v. Booth, 95 Mo. 383; Dougherty v. Horsel, 91 Mo. 161; Coffee v. Smith, 101 Mo. 229; Desmond v. Myers, 113 Mich. 437; Seeders v. Allen, 98 Ill. 468; Manix v. Purcell, 46 Ohio St. 102. (3) The declarations, statements and actions of plaintiff when he sold lots 24 and 25 to this respondent estop him from setting up any claim to or against or any interest in lots 21, 22, 23 and 26. "Where a party by his acts or words causes another to believe in the existence of a certain state of things and induces him to act on that belief so far as to alter his own previous condition, he will be concluded from averring anything to the contrary against the party so altering his condition." Chouteau v. Goddin, 39 Mo. 250; Garnhard v. Finnerty, 40 Mo. 462 & 463; Reynolds v. Kroff, 144 Mo. p. 447; Huntsucker v. Clark, 12 Mo. 339; Taylor v. Zepp, 14 Mo. 482; Taylor v. Elliott, 32 Mo. 172; Rice v. Bunce, 49 Mo. 231; Moore v. Bank, 52 Mo. 377; Schenck v. Sautter, 73 Mo. 46; Guffey v. O'Rielley, 88 Mo. 418; Longworth v. Aslin, 106 Mo. 155; Bank v. Frame, 112 Mo. 513. (4) Aside from the three specific points already set out, the evidence shows that there is no equity in the claim of plaintiff as against this defendant. "A party in a court of equity, who asks to have his own equitable rights enforced and a conveyance annulled which he insists is unconscionable and fraudulent, must, by clear and undubitable evidence, show that he has superior equity to all against whom he seeks relief. If he invokes the aid of a court of equity he must not ask to have superior equity set aside to let him into the relief sought." Bump on Fraudulent Con. (4 Ed.), sec. 575, p. 560; Preston v. Turner, 36 Iowa 671; Story's Eq. Jur. (13 Ed.), sec. 640, p. 63; Van Wyck v. Seward, 6 Paige Ch. 62; Gottlieb v. Thatcher, 34 F. 440.

OPINION

MARSHALL, J.

This is a bill in equity to subject lots 21, 22, 23 and 26 and a strip fifteen feet wide by about one hundred and forty feet long lying east of lot 23, in city block 3719 of the city of St. Louis, to the payment of the balance of some fourteen thousand dollars 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:

[SEE ILLUSTRATION IN ORIGINAL]

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...