Ilgenfritz v. Ilgenfritz
| Decision Date | 06 June 1893 |
| Parties | Ilgenfritz v. Ilgenfritz, et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Pettis Circuit Court.
Affirmed.
William S. Shirk for appellants.
(1) The petition alleges no facts which amount to false or fraudulent representations. Mere promises and assertions of hopes and beliefs do not constitute false or fraudulent representations. Bishop on Contract Law, secs. 324, 326; Terry v. Ins. Co., 3 Mo.App. 595; Morrison v Koch, 32 Wis. 254; Dawe v. Morris, 149 Mass 188; Gage v. Lewis, 68 Ill. 604; Kerr on Fraud and Mistake [2 Ed.], 42. (2) The undisputed evidence shows that the title to the land in question was placed in Mrs Ilgenfritz for the sole purpose of providing a home for her and for her husband and their children against any financial reverses that might overtake him and that it was not her equitable separate estate. Equity will not interfere. Black v. Black, 30 N. J. Equity, 215; Meldrum v. Meldrum, 15 Col. 478. (3) The husband having paid every dollar for the land in question and the wife having left him and his home, she is not entitled to the benefits of the homestead. Burnes v. Lewis, 13 S.E. 123.
Jackson & Montgomery for respondent.
(1) The conveyance of the property in question to the plaintiff was a settlement upon her, and vested the title in her so that the settlement could not afterwards be revoked. Schouler on Husband and Wife, secs. 217, 383, 385 and 387; 2 Pomeroy's Equity, sec. 1039; Alexander v. Warrance, 17 Mo. 228; Hollocher v. Hollocher, 62 Mo. 268; Seibold v. Christman, 75 Mo. 308; Wood v. Broadley, 76 Mo. 31; Shuster v. Shuster, 93 Mo. 444; Turner v. Shaw, 96 Mo. 27. (2) The procuring the title to this property from the plaintiff, in the manner in which it was done, was a fraud, for which the conveyance should be avoided and the title re-vested in plaintiff. First. Equity looks with suspicion upon transactions between husband and wife, especially where the advantage is against the wife, and the courts do not require as strong evidence of fraud in such a case, as in others. 1 Story on Equity, secs. 218, 307 and 308; 2 Pomeroy's Equity, secs. 955 to 963; 2 Bishop on Married Women, sec. 478; Witbeck v. Witbeck, 25 Mich. 439; Taylor v. Taylor, 8 How. 200. Second. A false promise to a wife made to procure a deed from her is a fraud sufficient to entitle her to relief. 2 Pomeroy's Equity, sec. 877; Cooley on Torts, sec. 487; Bear v. Stahl, 61 Mich. 203. Third. Insufficient consideration will always be considered in cases of fraud but in a case of fraud of the husband upon his wife, such fact is entitled to unusual weight. Pomeroy's Equity, secs. 925 and 927 and note; Robinson v. Robard, 15 Mo. 459; Curd v. Lackland, 49 Mo. 451; Durfee v. Moran, 57 Mo. 349; Phillips v. Stewart, 59 Mo. 491; Nelson v. Betts, 21 Mo.App. 219. (3) The defendant, C. E. Ilgenfritz, was not an innocent purchaser. To avail himself of such a defense, he should plead and prove that he paid the consideration without notice of the fraud. Halsa v. Halsa, 8 Mo. 303; Paul v. Fulton, 25 Mo. 156; Wallace v. Wilson, 30 Mo. 340; Aubuchon v. Bender, 44 Mo. 560; Bishop v. Schneider, 46 Mo. 482; Amholt v. Hartwig, 73 Mo. 485; Dougherty v. Cooper, 77 Mo. 532; Young v. Kellar, 94 Mo. 581. This he did not do in this case. There is no pretense of even an indirect payment until long after this suit was brought against him.
OPINION
In Banc
This is a suit in equity by Mrs. Belle McNair Ilgenfritz against her husband, W. D. Ilgenfritz, and his brother, C. E. Ilgenfritz, to set aside a deed, made by herself and husband to the brother, C. E. Ilgenfritz, by which they conveyed to him a house and lot in the city of Sedalia and to re-vest the title thereto in plaintiff. The circuit court gave plaintiff a decree as prayed and defendants appeal.
The plaintiff lived in St. Louis prior to her marriage, and her husband resided in Sedalia. After the marriage they went to Sedalia to live. In June, 1884, and during the coverture, the husband, W. D. Ilgenfritz, with his own means, purchased the lot of ground in question and caused it to be conveyed directly to his wife, the plaintiff, by a general warranty deed without words limiting it to her sole and separate use. Afterwards with his own money he erected a dwelling house on this lot.
Plaintiff and her husband did not live happily together and in the latter part of November, 1887, she left him and returned to her father's house in St. Louis, where, according to all the testimony, she has since continued to reside. On the fifth of December her husband followed her to St. Louis. He took with him a deed that he had caused to be drawn, to the lot in question. He sought an interview with plaintiff and represented to her that it was necessary to enable him to support her and their children for them to sell their home, the house and lot in suit; that his brother and co-defendant, C. E. Ilgenfritz, who was the proprietor of a hardware store in Sedalia, had agreed that if plaintiff would convey the house and lot to him, for $ 5,000, he would transfer to plaintiff's husband an interest of that value in said hardware store, out of the profits of which her husband could maintain his family. It was mutually agreed at the time that plaintiff and her husband would live apart from each other for an indefinite period. This agreement to live apart and her consent to execute the deed as requested by her husband were obtained after consulting with her father, Mr. McNair.
At the suggestion of her father, and as an earnest of good faith that her husband was obtaining the deed for the purposes he had asserted, her husband gave plaintiff the following written agreement:
At the time this agreement was signed and delivered, plaintiff and her husband executed the deed to the lot in suit to his brother, C. E. Ilgenfritz, his co-defendant, for the expressed consideration of $ 5,000. Her husband, with some delays, paid the $ 30 per month for seven months and then refused to make any other payment. The evidence is uncontradicted that C. E. Ilgenfritz at the time of the execution of the deed paid nothing for it. He did not sell or transfer to W. D. Ilgenfritz any share in his hardware business at that time. In December, 1888, the plaintiff commenced this action to rescind the deed. In May, 1889, the hardware business of C. E. Ilgenfritz was incorporated and W. D. Ilgenfritz took $ 3,500 worth of stock in the new company. His explanation of this is that it was found on a settlement that he owed his brother $ 1,500 and he took stock for the balance due. Nothing whatever was said about this $ 1,500 of indebtedness at the time the plaintiff made the deed.
It turns out in evidence that since the institution of this suit C. E. Ilgenfritz, the brother, has conveyed all his hardware stock to his mother and two brothers, W. D. and Linn Ilgenfritz, and he has conveyed this lot to his mother. Indeed there cannot be a rational doubt that C. E. Ilgenfritz, up to May, 1889, held the title to the house and lot in suit under a verbal agreement as a trustee for W. D. Ilgenfritz and the mother is a grantee pendente lite, with full notice. She lives in the house with W. D. Ilgenfritz and he testified he had no doubt she would convey it back to him at any time his wife would return and live with him. He also gave evidence to the effect that he had endeavored to get his wife to return to him and expressed much affection for her, all of which she very emphatically denied. The plaintiff and her sister testified that plaintiff had charged her husband with tricking her out of the property and that he admitted he had to do so to prevent her mortgaging it. This he denies.
Upon the trial, the defendants sought to interrogate the plaintiff as to where she had gotten the money with which to return to her father's home, and as to what reason she had for leaving her husband and for refusing to return to him, and as to whether or not he had not asked her to return and had offered to procure a re-conveyance of the property in question, and as to whether her husband had given any reason to her father for discontinuing the monthly payments, to all of which said questions the court sustained objections because the evidence sought was immaterial, and to this the defendant excepted. The court found the issues for the plaintiff and entered a decree annulling the aforesaid deed and re-vesting in the plaintiff the title to the property in question in the same manner and with the same effect as she held it at the date of said conveyance.
I. The conveyance to plaintiff of the lots in suit, by Ittel and wife, was made by the direction of her husband, without suggestion on her part and without any undue influence by her. Under such circumstances, when the...
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