Kay v. Politte

• Decision Date: 14 June 1939
• Docket Number: 35620
• Parties: Louis Kay, Appellant, v. Ida M. Politte, Widow of Thomas M. Politte; Raymond Politte, Howard Politte, Thomas Dorsey Politte, James Politte, Ruby Politte, Clay Politte, Martha Politte, Fern Politte, William C. Politte, Lindell Politte, Paul Politte, William L. Vaughn and Harold Kamp
• Court: Missouri Supreme Court

129 S.W.2d 863

344 Mo. 805

Louis Kay, Appellant, v. Ida M. Politte, Widow of Thomas M. Politte; Raymond Politte, Howard Politte, Thomas Dorsey Politte, James Politte, Ruby Politte, Clay Politte, Martha Politte, Fern Politte, William C. Politte, Lindell Politte, Paul Politte, William L. Vaughn and Harold Kamp

No. 35620

Supreme Court of Missouri

June 14, 1939

Appeal from St. Francois Circuit Court; Hon. Taylor Smith Judge.

Reversed and remanded (with directions).

Terry Terry & Terry for appellant.

(1) Where the evidence shows that there is a homestead (not set off) in lands sought to be partitioned, the land in area or value greatly exceeds the value of the homestead, it is the duty of the court to appoint commissioners to set off the homestead, and then order the sale of the property which is not set off and apart as the homestead for the widow and minor children. Hammons v. Hammons, 300 Mo. 156; Sec. 617, R. S. 1929; Dalton v. Simpson, 193 S.W 550; Simpson v. Scroggins, 182 Mo. 571; Brennecke v. Riemann, 102 S.W.2d 874, 109 A. L. R. 1219; Daniels v. Peck, 221 Mo.App. 879. (2) The People's Bank of De Soto had the right to sue out the execution, have it levied upon the land in question and sell the same at sheriff's sale, even though the judgment debtor had already conveyed the property prior to the time plaintiff started suit and obtained judgment, because every conveyance of real estate made with intent to hinder, delay or defraud creditors is made by statute absolutely void, and it makes no difference whether Dorsey T. Politte, the grantee in Paul Politte's deed, was free from fraud. Oldham v. Wade, 273 Mo. 250; Dalton v. Baron, 293 Mo. 49; Sec. 31117, R. S. 1929; Needles v. Ford, 167 Mo. 510. (3) Plaintiff's suit was properly bought to try and determine title, and under the pleadings plaintiff is entitled to establish the fact of fraudulent conveyance. Titus v. Development Co., 264 Mo. 229; Potter v. Adams, 125 Mo. 118; Sec. 1520, R. S. 1929. (4) Fraud may be proved by facts and circumstances, and does not require direct testimony to establish it; and, some of the well known badges of fraud are: (a) Relationship, such as brother and brother, husband and wife, etc. Rehm v. Albers, 272 Mo. 459; Renney v. Williams, 89 Mo. 145; Feaster v. Brooks, 293 S.W. 136; Daggs v. McDermott, 34 S.W.2d 50; Cole v. Cole, 231 Mo. 236; Ice Cream Co. v. Kuhlman, 238 Mo. 697; Dickey v. Thompson, 18 S.W.2d 392. (b) Insolvency of grantor. Renny v. Williams, 89 Mo. 145; Lynes v. Holt, 1 S.W.2d 121. (c) Failure to record a deed at the time that it is executed and delivered. Bank v. Doran, 109 Mo. 50; Golsby v. Johnson, 82 Mo. 608; Woodson v. Powell, 19 Mo. 345; Hastings v. Crossland, 13 Mo.App. 592. (d) Conveyance of all of debtor's property after claim is due or suit is brought. 27 C. J. 488; McCollum v. Crane, 101 Mo.App. 527; Barrett v. Foote, 187 S.W. 70. (e) Transfer of all of debtor's property. Ward v. Stutzman, 212 S.W. 67; 27 C. J. 492; Barrett v. Foote, 187 S.W. 70. (f) Failure to produce note, evidence in the way of account books or check showing the original indebtedness and what for. 27 C. J. 494; Leeper v. Bates, 85 Mo. 224; Golsby v. Johnson, 82 Mo. 608. (g) Failure to produce note or receipt showing that conveyance was in satisfaction of another indebtedness. 27 C. J. 496; Woodson v. Paul, 19 Mo. 345; Hastings v. Crossland, 13 Mo.App. 592. (h) Where past indebtedness is not shown by clear, cogent and convincing testimony. 27 C. J. 537. (i) Where past indebtedness is not shown clearly as to amount and why incurred. 27 C. J. 496, 537. (j). Where evidence of prior debt is unsatisfactory in any manner. 27 C. J. 537; Feaster v. Brooks, 293 S.W. 136; Daggs v. McDermott, 34 S.W.2d 50; Rehm v. Albers, 272 Mo. 459; Ice Co. v. Kuhlmann, 238 Mo. 697; Cole v. Cole, 231 Mo. 236; Bank v. Fry, 216 Mo. 45.

Sam M. McKay and Clyde Williams for respondents; Clyde Williams guardian ad litem for minor respondents.

(1) The homestead of a widow and minor children cannot be sold under execution issued upon a judgment against one of the heirs of the deceased homesteader: Kelly v. Parman, 282 S.W. 755; In re Boward's Estate, 231 S.W. 601; Patton v. Buston, 230 S.W. 118; Creech v. Childers, 156 Mo. 338; Ehlers v. Potter, 219 S.W. 915; In re Rombauer Estate, 256 S.W. 1066. (2) Fraud is never presumed but must be clearly and distinctly proved by the party charging it by evidence inconsistent with a contrary view. Gordon v. Ismay, 55 Mo.App. 323; So. Mo. Pine & Lbr. Co. v. Crommer, 202 Mo. 504; Decker v. Diemer, 229 Mo. 296; Stahlhuth v. Nagle, 229 Mo. 570; Zehnder v. Shark, 248 Mo. 39; Flood v. Busch, 165 Mo.App. 142; Reger v. Reger, 293 S.W. 414; Jones v. Nichols, 216 S.W. 963. (3) The law indulges the presumption of good motives and mere suspicion, conjecture, or insinuation do not prove fraud. Kilpatrick v. Wiley, 197 Mo. 123; Ray County's Sav. Bank v. Hutton, 224 Mo. 42; Ulrick v. Pierce, 233 S.W. 401; Green v. Edmonds, 245 S.W. 378; Gilbert v. Seitz, 170 Mo.App. 569.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is an action to determine title to and to partition certain lands in Jefferson and St. Francois Counties. The cause was commenced in Jefferson County, but the venue was changed to St. Francois. Defendants contend that plaintiff had no interest in the lands. It was found however, that he was the owner of a one-eleventh interest, but subject to the dower and homestead interest of defendant, Ida M. Politte, and the homestead interest of the minor defendants, William C. and Lindell Politte. And it was found that defendants, Paul and Dorsey Politte, had no interest; that other defendants, except Ida M. Politte, Vaughn and Kamp, had a one-eleventh interest in fee, subject to the homestead and dower interests, and that the interests of certain named adult defendants and defendant, Ida M., were subject to a deed of trust held by defendants, Vaughn and Kamp. It was found that the lands were in excess of 500 acres and were of a value in excess of $ 10,000. Commissioners were appointed to set out the homestead, and the remainder was ordered sold, because not susceptible of partition in kind. Motion for a new trial and motion in arrest were filed and sustained, and plaintiff appealed.

Thomas M. Politte died August 13, 1920, and, at the time of his death, he, with his family, resided upon the 500 acre tract, and it was conceded that the widow, Ida M. Politte, and the minors had a homestead in said lands. Whatever interest, if any, plaintiff has was derived from an execution sale based on a judgment against Paul Politte, a son of Thomas M. and Ida M. Politte. May 20, 1922, The Peoples Bank of DeSoto obtained a judgment against Paul for $ 477.42. May 1, 1925, execution was issued on this judgment, and on May 2, 1925, what is called a lis pendens notice was filed by the special deputy commissioner then in charge of the Peoples Bank. The notice gave the date of the judgment, the amount, and recited that execution was ordered, and would be returnable to the September 1925, term of the court. Under the execution the sheriff levied upon whatever interest Paul had in the lands in question, and at the execution sale on November 3, 1925, plaintiff was the highest bidder, $ 477.50, and received the sheriff's deed purporting to convey to plaintiff all of Paul's interest in said lands.

December 8, 1921, Paul made a warranty deed to his brother Dorsey, a defendant, purporting to convey Paul's interest in the Politte lands, but this deed was subsequent to the notes given by Paul to the Peoples Bank and upon which notes the bank's judgment was based. The consideration recited in the warranty deed was "one dollar and other good and lawful considerations." This deed was acknowledged on the date of its execution, but was not filed for record until May 6, 1925, which was five days after levy under the execution, and four days after the lis pendens was filed. Plaintiff in his reply, pleaded that the deed from Paul to Dorsey was without consideration and was void as to creditors, and the trial court so found.

The defense that plaintiff has no interest in the lands is based on two contentions: First, that the execution sale and the sheriff's deed were wholly void, because, it is claimed, that lands, in which there is a homestead, cannot be sold, even though sold subject to the homestead, to pay the debt of an adult son or daughter of the deceased homesteader, and that, therefore, plaintiff acquired no interest by reason of the execution sale and sheriff's deed; and second, it is contended that the conveyance from Paul to his brother, Dorsey, was valid, and that, therefore, Paul had no interest at the time of the execution sale.

The rights of the widow, minor children, and creditors in the homestead is determined by the law in force at the time of the death of the homesteader. [Dennis et al. v. Gorman, 289 Mo. l. c. 233 S.W. 50; Armor et al. v. Lewis et al., 252 Mo. 568, 161 S.W. 251.] As appears, supra, Thomas M. Politte, the owner of the homestead lands died August 13, 1920, hence the rights mentioned are to be determined under Section 5857, Revised Statutes 1919, now Section 612, Revised Statutes 1929 (Mo. Stat. Ann., sec. 612, p. 4227), and which has remained unchanged since 1907, Laws 1907, page 301.

Section 612, Revised Statutes 1929, is as follows: "If any such housekeeper or head of a family shall die and leave surviving him a widow or minor children, his homestead, to the value aforesaid, shall pass to and vest in such widow or children or if there be both, to such widow and children, and continue for their benefit until the youngest child attains the age of twenty-one years and until the remarriage or death of such widow; that is to say, the...