Jamison v. Baggot

• Decision Date: 02 June 1891
• Parties: Jamison, Administrator, et al. v. Bagot et al., Appellants
• Court: Missouri Supreme Court

16 S.W. 697

106 Mo. 240

Jamison, Administrator, et al. v. Bagot et al., Appellants

Supreme Court of Missouri, Second Division

June 2, 1891

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

M Kinealy and James R. Kinealy for appellants.

(1) On the trial the plaintiff abandoned the case stated in his petition, and without warning sprung a new case of fraud affecting Mrs. Bobb's title to the property, which was not alluded to in his petition, and was based on an entirely new theory. This demands a reversal of the judgment. The particular acts of fraud and the particular case on which recovery is sought must be fully stated in the petition. Reed v. Bott, 100 Mo. 62, and cases cited; 2 Dan. Ch. Pr. [Perk. Ed.] 856, and cases cited in note; Gresley's Eq. Ev., pp. 158, 159, 160, 161; Grossholtz v. Newman, 88 U.S. [21 Wall.] 488; Foster v. Goddard, 66 U.S. [1 Black.] 518; Gurney v. Ford, 2 Allen, 576; 2 Dan. Ch. Pr. 324, and cases cited in note 8; Other v. Somerthwaite, 5 Eq. Cas. 442, 443. (2) The court erred in admitting in evidence the pleadings and interlocutory decree in case 13809, Bobb v. Robb, and in regarding the recitals and statements in them, and in the decree, as evidence in the cause on which to rest any finding of fact, save that a judgment debt existed, and that the creditor had exhausted his legal remedy. Snodgrass v. Bank, 25 Ala. 178; Nichols v. Wadsworth, 40 Minn. 549; Goodnow v. Smith, 97 Mass. 68; Donley v. McKiernan, 62 Ala. 35; Vogt v. Ticknor, 48 N.H. 245; Bump on Fraud. Convey., secs. 574-576, and cases cited; Gurney v. Ford, 2 Allen, 576; Wait on Creditors' Bills, secs. 74, 270, and cases cited in notes. (3) John Bobb cannot attack the deed of Charles Bobb to Rose, trustee of Martha E. Bobb, conveying the "Hayden place." Bobb v. Bobb, 99 Mo. 578. (4) The agreement between Martha E. Bobb and Charles Bobb, that he should retain her funds as Mrs. Bobb's separate estate, was good in equity, and he merely executed his trust by making the conveyance of the Hayden place to Mrs. Bobb's trustee, and her title cannot be affected by the claims of his creditors. Kinealy v. Macklin, 89 Mo. 433; Hammons v. Renfrow, 84 Mo. 341; McGovern v. Knox, 21 Ohio St. 547. (5) There was no evidence to sustain the case urged at the trial -- that Charles Bobb conveyed property to Mrs. Bobb with intent to hinder, delay and defraud his creditors. Gilbert v. Glenny, 75 Iowa 514; Walsh v. Ketchem, 12 Mo.App. 580; Shreyer v. Scott, 134 U.S. 405. (6) No importance should be attached to the statement of Mrs. Lucy G. Taylor, that Mrs. Bobb admitted to her that when she married Mr. Charles Bobb she had no property. (7) There is no evidence to sustain the final decree. See cases cited under points 1, 3, 4 and 5.

Thos. J. Rowe, H. A. Clover and H. A. Clover Jr., for respondents.

(1) The decree is supported by the allegations of the bill and the proofs in the case. (2) The deed of 1861 to Martha E. Bobb was void, so far as these plaintiffs were concerned. The law on this subject is well settled. The burden is on defendants to show at the time of the gift, that the means of the donor, independent of property conveyed, were abundantly ample to satisfy all his creditors. Bump on Fraudulent Conveyances, 284; Grimes v. Russell, 45 Mo. 431; Jones v. Taylor, 2 Atk. 600; Lane v. Kingsbury, 11 Mo. 402. The inquiry is limited to the circumstances of the donor at the time of the conveyance. King v. Thompson, 9 Pet. 204; Posten v. Posten, 4 Whart. 27. To rebut the presumption of fraud the proof must be clear, full and satisfactory. If there is a reasonable doubt of the adequacy of the grantor's means, then the voluntary conveyance must fall. Patten v. Casey, 57 Mo. 118; 19 Md. 22; 8 Cow. 406; 8 Cal. 118; Payne v. Stanton, 59 Mo. 158; Pawley v. Vogel, 42 Mo. 291; Potter v. McDowell, 31 Mo. 62; McLaren v. Mead, 42 Mo. 115. (3) The finding of the chancellor in equity causes will be deferred to by this court, unless he has manifestly disregarded the evidence -- and this, obviously, more especially in jurisdictions where the evidence is given viva voce by the testimony of witnesses testifying in open court under the eye and observation of the chancellor. Sharp v. McPike, 62 Mo. 300; Hodges v. Black, 76 Mo. 537; Boyle v. Jones, 78 Mo. 403; Snell v. Harrison, 83 Mo. 651; Ford v. Phillips, 83 Mo. 523. (4) Transactions between husband and wife, between whom there exists a natural and strong motive to provide for a dependent at the expense of honest creditors, if such transaction be impeached as fraudulent, may be shown to be fraudulent by less proof, and the party claiming the benefit of such transaction is held to a fuller and stricter proof of its justice and the fairness of the transaction after it is shown to be prima facie fraudulent than would be required if the transaction were between strangers. Brickley v. Walker, 32 N.W. 773, and note; Jackson v. Beach, 9 A. (N. J.) 380; Foster v. Knowles, 7 A. (N. J.) 295; Frank v. Humphrey, 12 N.E. (Ill.); Popendick v. Frobenius, 23 N.E. (Mich.); Bank v. Weber, 33 N.W. 606; Hanson v. Manley, 33 N.W. 357; Seminary v. Saenger, 33 N.W. 301; Chapman v. Somerfield, 14 P. 253; Witz v. Osburn, 2 S.E. (Va.) 33, and note; Webb v. Ingraham, 1 S.E. (W. Va.) 816; Wedgworth v. Wedgworth, 4 South. Rep. (Ala.) 149; Burt v. Timmons, 2 S.E. (W. Va.) 780, and note; Pollack v. Searcy, 4 So. 137; Gordon v. McIlwain, 82 Ala. 247; 2 So. 671; Hubbard v. Allen, 59 Ala. 283; Knight v. Capito, 23 W.Va. 644, 645, and numerous authorities cited by Bump on Fraudulent Conveyances [3 Ed.] 57, 59; Kaine v. Weigley, 22 Pa. St. 183, 184, which says: "In any case the urgency and number of the circumstances are proportioned to the original improbability of the offense." (5) Again, when a wife purchases land or other property, the burden is upon her to prove distinctly that she paid for the land or other property with funds not furnished by her husband. Evidence that she purchased amounts to nothing, unless it is accompanied with clear and full proof that she paid for it with funds furnished by some one other than her husband. In the absence of such proof the presumption is that her husband furnished the means of payment. Seitz v. Mitchell, 94 U.S. 580; Stockdale v. Harris, 23 W.Va. 499; McMasters v. Edgar, 22 W.Va. 673; Rose v. Brown, 11 W.Va. 122; Core v. Cunningham, 27 W.Va. 206; Herzog v. Weiler, 24 W.Va. 203; Sloan v. Torrey, 78 Mo. 625.

OPINION

Thomas, J.

The petition in this case is in the nature of a creditor's bill, and it seeks to set aside and cancel certain conveyances mentioned therein, and to subject the land described in them, situated in the city of St. Louis, to the payment of a judgment in favor of plaintiffs against Charles Bobb, one of the defendants, for the sum of $ 82,185.16, rendered June 15, 1878. In substance, the petition avers that the debt for which said judgment was rendered by the circuit court of the city of St. Louis accrued during the years 1843 to 1869, inclusive; that John S. Miller held a deed of trust on the lands described, dated the twenty-third day of September 1865, for $ 8,000 principal; that defendant Charles Bobb, bought this deed of trust some time after its execution; that on the sixth day of February, 1879, said Charles Bobb caused the land described in this deed of trust, and which is the land involved in this suit, consisting of two tracts, to be sold by the trustee named in the deed of trust, and at the sale said Charles Bobb had Henry C. Bagot, who is also made a defendant herein, to buy said land and take a deed to himself therefor; that no money was paid for the bid made at this sale, and that said Charles Bobb had the title placed in said Bagot for his own benefit, said Bagot not having any beneficial interest therein, nor having paid anything for it; that Bagot, at the instance and request of said Charles Bobb, conveyed said land to John Letcher, without consideration, but that the latter had not then placed his deed on record. The petition then avers that the said defendant, "Charles Bobb, so caused said real estate to be conveyed, first, to said Bagot, and afterwards to said Letcher, and also caused said conveyance to be withheld from record, with the fraudulent purpose and design of hindering and delaying his said creditors, and to prevent said property from being subjected to the payment of said judgments; that neither said Bagot nor said Letcher has, or ever had, an interest in said property, nor have they, or either of them, ever paid anything therefor, but said property in fact belongs to said defendant, Charles Bobb, who has caused the title thereof to be placed successively in said Bagot and Letcher, with the fraudulent design aforesaid; that the defendant, Martha E. Bobb, is the wife of the defendant, Charles Bobb; that as plaintiffs are informed and believe, and therefore state, the said defendant, Martha E. Bobb, now claims and asserts that she is in truth and in fact the owner of the real estate hereinbefore described, and that she was in truth and in fact the owner of the notes secured by deed of trust under which said real estate was sold, as hereinbefore set forth, and that the said real estate was bought in for her, and that she is now the equitable owner of the same, although said real estate now stands in the name of the said John Letcher; wherefore the plaintiffs make the said Martha E. Bobb a party defendant to this action; that nothing has ever been collected on said judgment excepting the sum of $ 6, and that, as to the balance of said judgment, returns of nulla bona have been made on the executions issued thereon to the sheriff of the said city of St. Louis; wherefore the plaintiffs pray the court that said real estate be decreed to be...