Gibson v. Ransdell, 39341.

• Decision Date: 04 June 1945
• Docket Number: No. 39341.,39341.
• Parties: GIBSON v. RANSDELL.
• Court: Missouri Supreme Court

188 S.W.2d 35

GIBSON v. RANSDELL.

No. 39341.

Supreme Court of Missouri, Division No. 1.

June 4, 1945.

Appeal from Circuit Court, Clinton County; R. B. Bridgeman, Judge.

Action by Ellen Gibson against Mattie S. Ransdell to set aside conveyances of realty and to establish a lien for amount of plaintiff's claim as a creditor. From a judgment for defendant after court sustained a demurrer to plaintiff's amended petition, plaintiff appeals.

Judgment reversed and cause remanded.

John D. McNeely, of St. Joseph, and R. H. Musser, of Plattsburg, for appellant.

A. R. Alexander, of Plattsburg, for respondent.

DALTON, Commissioner.

Action in equity to set aside certain conveyances of described real estate in Gower, Clinton County, on the ground that the conveyances were fraudulent and void as to plaintiff, a creditor, and to establish a lien for the amount of plaintiff's claim. The court sustained a demurrer to plaintiff's second amended petition, plaintiff refused to plead further and the court, thereupon dismissed the cause and entered judgment for defendant. Plaintiff has appealed.

The second amended petition alleged that on January 31, 1920 (for the purchase of a hardware stock), Henry C. Ransdell and J. B. Matthews made, executed and delivered to L. R. Jackson their promissory note of that date in the sum of $10,364.86, "for value received, due six months after date and to bear interest at the rate of 6% per annum"; that on January 31, 1920, L. R. Jackson assigned the said note to plaintiff; that J. B. Matthews died and Henry C. Ransdell "continued the business" and made payments of principal and interest on the note to May 4, 1940; that the balance due on the note at the time of filing the petition was $4,806.30; that, on April 14, 1923 (after the execution of the said note), Henry C. Ransdell became the owner of the described real estate; that, on December 17, 1931, the said real estate was of the value of $6,000; that on said date Henry C. Ransdell and Mattie S. Ransdell, his wife, executed a warranty deed conveying the described real estate to Elisha S. Horn for the express consideration of $6,000; that the consideration was not paid; that Elisha S. Horn, a single man, on December 17, 1931, conveyed the described real estate to Henry C. Ransdell and Mattie S. Ransdell, as husband and wife; that both conveyances were duly recorded in the office of the recorder of deeds of Clinton County on December 17, 1931; that plaintiff, a resident of Andrew County, Missouri, was aged and infirm in health and was not informed of the said conveyances until after the death of Henry C. Ransdell on July 6, 1942; that Henry C. Ransdell "left no personal estate" and "left no property subject or sufficient to pay the indebtedness of plaintiff, unless the legal status of said described real estate be restored to the condition it was in on December 17, 1931"; "that, at the time of making said conveyances, it was the purpose of the said Henry C. Ransdell and defendant Mattie S. Ransdell to unlawfully and fraudulently defeat and defraud * * * plaintiff of the rightful payment of the indebtedness due to her by the said Henry C. Ransdell, in the event of his death, prior to the death of said Henry C. Ransdell (sic); * * * that said fraud could not be fully consummated until the occurrence of the death of the said Henry C. Ransdell prior to the death of defendant; and that she (plaintiff) was without remedy as against the said Henry C. Ransdell, unless the said Henry C. Ransdell survived the defendant Mattie S. Ransdell."

It was further alleged that, "without the aid and judgment of the conscience" of the court, plaintiff was without remedy. She prayed the court to cancel, annul and set aside the said conveyances and to divest the title from the defendant to the extent of plaintiff's indebtedness, and without any right of inheritance and sale by defendant. She further asked that plaintiff's debt be adjudged a lien and a charge against the described real estate and "for all other decrees, orders and judgments proper in the premises and for costs."

The abstract of the record does not disclose the date of the institution of the action, but respondent states that the original petition was filed on the 9th day of June 1943; that the second amended petition was filed on April 3, 1944; and that on the following day the demurrer was filed. The demurrer was upon the ground that the second amended petition "did not state facts sufficient to constitute a cause of action in this, that it appears upon the face of said petition that the plaintiff's cause of action, if any she has, accrued more than ten years before the commencement of this suit, and has become completely barred by the statute of limitations as set forth in Article 9, Chapter 6, Revised Statutes of Missouri, 1939, and particularly the third clause of Section 1013 thereof."

Appellant assigns error on the court's action in sustaining the demurrer and contends that appellant's cause of action did not accrue until after the death of Henry C. Ransdell on July 6, 1942; and that the statute of limitations did not begin to run until that time.

It appears that the petition was drawn on the theory that, although the transfer of December 17, 1931, was made for the purpose of defrauding plaintiff, the fraud could not be and was not "fully consummated until the occurrence of the death of Henry C. Ransdell prior to the death of defendant," at which time Henry C. Ransdell "left no property subject or sufficient to pay the indebtedness of * * * plaintiff." Appellant argues "that the deed became fraudulent in law at the time of the death of Henry C. Ransdell, and that prior to that time she was without remedy." Appellant admits that upon the transfer of the described real estate to Henry C. Ransdell and Mattie S. Ransdell, as husband and wife, "in legal effect it became an estate by the entirety," with the right of survivorship and "carrying more to Mattie S. Ransdell than would have been her legal right, at the death of Henry C. Ransdell," except for such conveyance.

In support of her theory that a cause of action did not accrue until the death of Henry C. Ransdell, appellant says that "no action could have been maintained to subject the homestead in controversy to levy of execution or sale prior to the death of Henry C. Ransdell and that, therefore, no action could have been brought against him in his lifetime or the defendant, because the right of action to accrue depended wholly upon the contingency of the death of Henry C. Ransdell, prior to respondent." (Italics ours.) Appellant further contends that "the law respecting homesteads applies to this case." The petition does not allege facts tending to show the existence of a homestead, but states "that at the time of said conveyance a homestead right did not exist in the said Mattie S. Ransdell as to the indebtedness due from said Henry C. Ransdell to this plaintiff"; and that "the defendant, Mattie S. Ransdell, would have been entitled to a homestead in said property, at the death of the said Henry C. Ransdell, except as to the debt that might become due to this plaintiff, only." No issue of homestead is involved because the existence of a homestead is not alleged and the liability on the note existed prior to the date Henry C. Ransdell acquired title. No homestead rights ever intervened. Sec. 615, R.S.1939, Mo.R.S.A.

Appellant further relies on Sec. 1012, R. S.1939, Mo.R.S.A., and says that no right of action could have existed in favor of appellant, a creditor (on account of the mentioned conveyances) until there was a showing of damage sustained by the creditor as a result of said transfers and until the damage was capable of being ascertained. Appellant says that "by reason of Mr. Ransdell's death the right and the remedy came into existence and it was then possible to have full and complete relief obtained." Appellant cites numerous authorities in support of the proposition that "a cause of action does not accrue...