Gambrel v. Hines
| Decision Date | 19 May 1913 |
| Citation | 157 S.W. 119,170 Mo.App. 560 |
| Parties | FELIX GAMBREL, Appellant, v. THOMAS HINES, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Holt Circuit Court.--Hon. Francis H. Trimble, Judge.
Judgment affirmed.
H. B Williams and W. E. Stubbs for appellant.
(1) The law creates a presumption that property purchased during coverture is paid for with the husband's means. Vrook v. Tull, 111 Mo. 283. (2) A voluntary conveyance is presumptively fraudulent as to existing creditors, and the burden is on the donee to establish the validity of such conveyance. Vandeventer v. Goss, 116 App. 316, 323. (3) A person when indebted cannot settle a portion of his property on another unless enough is left to satisfy his debts. Welch v. Mann, 193 Mo. 304. (4) Interpleader knowingly consented to the property in question being advertised for sale, as property belonging to the execution defendant, Thomas H. Hines. The execution creditor was induced thereby to cause said property to be levied upon under execution, as the property of said execution defendant and thereby incurring much cost and expense, and such being true, the interpleader is now estopped from setting up title to the property in question. State ex rel. v. Branch, 151 Mo. 622; Bright v. Miller, 95 Mo.App. 270; Spence v. Renfro, 170 Mo. 417; Layson v. Cooper, 174 Mo. 211; Riley v. Vaughn, 116 Mo. 169; McClain v. Alshire, 72 Mo.App. 390.
John W. Stokes and J. B. Dearmont for respondent.
(1) A garnishee, to relieve himself of liability, must ask that all claimants be brought in and made parties, regardless of the amount claimed. Schawacker v. Dempsey, 83 Mo.App. 342. (2) A debtor, whether solvent or insolvent, may prefer one or more of his creditors, and may by any suitable means appropriate his property to the payment of the just debts of one or more of his creditors to the exclusion of all others. Wood v. Porter, 179 Mo. 65; Black v. Epstein, 221 Mo. 309. (3) Relationship and insolvency are not sufficient in themselves to establish fraud. The rule is that fraud must be proved and cannot be presumed. Black v. Epstein, 221 Mo. 309; Robinson v. Dryden, 118 Mo. 539. (4) In garnishment proceedings the execution creditor acquires no greater right against the garnishee than was held by the principal debtor. If the execution debtor could not maintain an action against the interpleader herein, then the execution creditor of said execution debtor cannot. Brewing Co. v. Railroad, 145 Mo.App. 32; Johnson v. Geneva Pub. Co. , 122 Mo. 104; Bank v. Hoppe, 132 Mo.App. 458.
ELLISON, P. J. Johnson, J., concurs. Trimble, J., having tried the case below, not sitting.
--Plaintiff was an execution creditor of defendant Hines, residing in Holt county. Under the execution, the clerk of a public sale of personal property advertised and sold as that of Hines, was garnished by the sheriff. Defendant's wife claimed that among the property thus sold as that of her husband, was a cow belonging to her, and that the money arising from a sale of the animal was hers. On the answer of the garnishee showing the conflicting claims to this money, in which he asked that he be allowed to pay the money into court and that the parties interplead, it was so ordered, no objection appearing. On a trial of the wife's interplea, the judgment in the trial court was in her favor and the plaintiff in the execution appealed.
The evidence is short. It showed that Mrs. Hines' father gave her a cow at her marriage, about fifteen years before the trial. She kept her several years when her husband (the defendant) sold her. In about five years afterwards, which was six months before this controversy arose, her husband bought another cow for her and gave it to her in place of the one he had disposed of. This one she kept until the public sale as above stated.
It was further shown by the evidence that her husband and she were about to remove from the State and her husband arranged for a public sale of his personal property. It seems that the property of some neighbors was, at their request, included in the advertisement and sale, and so was Mrs. Hines' cow, though this did not appear in the advertisement; that is to say, so far as the advertisement and sale were concerned, the property appeared to be defendant's.
Plaintiff asked a demurrer...
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