Garrett v. Wagner

• Decision Date: 18 December 1894
• Citation: 28 S.W. 762,125 Mo. 450
• Parties: Garrett, Appellant, v. Wagner et al
• Court: Missouri Supreme Court

28 S.W. 762

125 Mo. 450

Garrett, Appellant, v. Wagner et al

Supreme Court of Missouri, Second Division

December 18, 1894

Appeal from Saline Circuit Court. -- Hon. Richard Field, Judge.

In 1877, one of the defendants herein, Joseph P. Wagner executed his promissory note to George W. Garrett for $ 472.71, with ten per cent. interest from date, compounded annually. This note Garrett afterwards transferred to the plaintiff, who sued Wagner thereon and recovered judgment in February, 1889, in the Saline circuit court for $ 1,269.28 etc.

In May 1883, Wagner, who was then insolvent, and, according to his story, "has been insolvent ever since he has been in this county," subscribed for five shares of the stock of the Saline county Building & Loan Association. The face value of these shares was $ 200 each. He paid five installments of $ 5 per month on these shares which made them worth $ 25.50 and then on September 7 of that year gave them to his wife Sarah T. Wagner, his codefendant, and had them transferred to her on the books. At that time she had no property of any kind or description whatsoever. From the time of the transfer of this stock up to February, 1886, Wagner, notwithstanding such transfer, continued to pay $ 5 per month installments on this stock, which payments were maintained until February, 1886, up to which time Wagner had paid on the stock some $ 170.50. On the sixth of that month, the property in question was bought by Wagner from Piper for his wife, for the sum of $ 788.

The defendants, Wagner and wife, had been living in a house with their six children, he paying $ 200 per annum rent until the house was bought from Piper. The money necessary to the purchase was procured by Mrs. Wagner and her husband executing a deed of trust to a trustee for the building and loan association to secure a note for $ 1,000 signed by her and her husband. This trust deed embraced the litigated lot, as well as the five shares of stock aforesaid.

Piper was paid the $ 788, which was done by Wagner's transferring the check to him which Wagner received as part of the proceeds of the $ 1,000 loan. The proceeds of another check for $ 137 arising from that loan Wagner collected.

This arrangement was made between Wagner and his wife regarding the property bought of Piper, just prior to such purchase: Mrs. Wagner was to buy the house and to rent it to her husband for $ 13.33 per month or $ 160 per year. By a singular coincidence, this precise sum of $ 13.33 per month was just the amount to be paid per month on the note -- loan of $ 1,000. Many of the transactions aforesaid were conducted by Wagner alone; he deposited what he called his wife's money in his own name, and she had never seen the shares of stock until the hearing of this cause.

Soon after the purchase, Wagner and his wife moved into the house and there remained until July 1, 1891. Mrs. Wagner, as she testified, paid no amount whatever on the $ 1,000 note, except the $ 13.33 per month paid for her by her husband to the building and loan association. The husband at the time was probate judge, enjoying emoluments in the way of fees amounting to some $ 1,500 per year.

After the house and lot were purchased, Wagner, wife and family lived there for several years, and during that time improvements were made on the house by Wagner making additions thereto, and a barn and cistern were built, as the wife admits, costing some $ 265. She testifies Wagner paid for it, but that "part of the improvements were paid for out of her money at the time. Dr. Wagner borrowed it, and I afterwards paid him." But she subsequently admits that she knew nothing about the matter only what he told her.

In his answer, Wagner admits having expended $ 575 in different sums in the years 1886, 1887, 1888, 1889, 1890 and 1891 in improvements on the property, but in his testimony he seems to make it out that such improvements cost a less sum. But that testimony is extremely vague and unsatisfactory as to the amounts expended or from what source derived.

From the time of the purchase from Piper, Wagner continued to pay to the building and loan association $ 13.33 by way of payment of house rent to his wife. These payments continued down to May 18, 1891. Wagner had all the household goods allowed by law, but claimed that he did not have the $ 300 of property allowed by the first and second subdivisions of section 4903, Revised Statutes, 1889, and, as provided by section 4906, should be exempt. His testimony, however, shows that his wife had a horse worth some $ 100, which he says he bought with her money, and he had a cow worth $ 50, an eastern buggy worth $ 100, besides another horse or two, and an old buggy worth $ 15, footing up some $ 300 worth of property.

As Wagner paid by way of rent to his wife $ 13.33 per month to the building and loan association from February 6, 1886, to May 18, 1891, this would foot up $ 839.79; add to this the $ 165 previously paid as dues on the five shares of stock, and it gives a total of $ 1,004.79.

On the judgment recovered by plaintiff in February, 1889, she sued out execution on April 11, 1891, and levied on the property as that of Wagner. After the levy was made, Wagner sold the property to Mason as the property of his wife on the eighteenth day of May, 1891, for $ 1,850, $ 600 of which was paid in cash and which Wagner has retained or invested for his wife, and a note for $ 1,250 given by Mason to Mrs. Wagner for the balance of the purchase money, and Wagner and wife thereupon executed to Mason a title bond conditioned for the making of a deed to the purchaser on the payment of the note for $ 1,250, which was made payable on or before January 1, 1892. Afterwards, on the twenty-third day of June, 1891, the property having been advertised for sale under the deed of trust, Mason, in order to protect his purchase, had to pay $ 229.93, to the building and loan association, and thus satisfied the residue of the $ 1,000 note -- debt of Wagner and wife.

The sale under the execution of plaintiff took place June 20, 1891, while Wagner was in possession of the property, and plaintiff bid in the property for $ 50, received a deed from the sheriff, and on June 27 next following filed her petition in the nature of a creditor's bill seeking to subject the property as being Wagner's to the payment of her judgment; and making the usual allegations contained in such bills, viz., that the property was bought with Wagner's money and put in the name of his wife to shield it from his creditors, at which his wife connived. That in furtherance of that fraudulent scheme, the contract with defendant Mason was made and $ 600 paid by him as part purchase money of the property, a note for $ 1,250 given for the residue, and a title bond executed, etc., etc. That the note for $ 1,250 was in the custody of another defendant the Wood & Huston Bank, as stakeholder, to await the result of the present litigation. The petition concludes with appropriate prayers for relief. The Wood & Huston Bank made default, and afterwards brought the $ 1,250 note into court and surrendered the same. The answer of Mrs. Wagner was a general denial. The answer of Mason set forth facts pertinent to the allegations of the petition, admitted his purchase of the property on the terms already stated; alleges as a defense that Wagner is tenant by the curtesy inchoate; that he, defendant Mason, had to satisfy the deed of trust to the building and loan association, to the amount of $ 229.93, and asked that that sum be credited on his note for $ 1,250. He asked that he be permitted to pay the balance into court, etc., etc.

The answer of defendant Wagner, after admitting marriage of himself and wife, denies the residue of the petition, and then sets forth that in 1883 he was the owner of five shares of stock in the building and loan association, gave and transferred the same to his wife, the value being $ 25.50, that he paid up the dues on the shares till February, 1886, when his wife purchased the property now in litigation from William Piper; paid for the same in cash, having secured the purchase money therefor by a mortgage to the building and loan association; that said property was thereupon rented by his wife to this defendant for $ 13.33 per month, which sum through him, she paid on her indebtedness to the building and loan association. The defendant Wagner then admits having made and paid for improvements on the property between years 1886 and 1891 inclusive, to the extent of $ 575. But the concluding portion of his answer is of such a unique character that it should not be permitted to perish from the earth. It is the following: "That all said gifts and payments were made by him for the use and benefit of his said wife; but defendant says said payments were not made to hinder, delay or defraud plaintiff or any creditor and did not hinder, delay or defraud any creditor of this defendant but that said money was not subject to seizure under execution or attachment, and could not have been subjected to the payment of any debt of defendant by any process of law. That said money was obtained by the labor of defendant during said time and that defendant had the lawful right to dispose of it in said manner and that no right of any creditor was affected thereby."

Suitable replies were filed to the answers. On the foregoing facts, the lower court found the issues for defendants and dismissed plaintiff's petition, hence this appeal.

Reversed and remanded.

Leslie Orear for appellant.

(1) There was no gift from husband to wife in this case, except as an afterthought, for the circumstances here show that there was no intention to create a gift inter vivos. The donor kept all of the evidences of transfer and all the...