Kinsella v. Gibson

• Decision Date: 09 December 1957
• Docket Number: No. 2,No. 45887,45887,2
• Citation: 307 S.W.2d 491
• Parties: Mrs. W. J. KINSELLA, Jr., Appellant, v. Robert E. GIBSON and Ruth Gibson, Respondents
• Court: Missouri Supreme Court

Page 491

307 S.W.2d 491

Mrs. W. J. KINSELLA, Jr., Appellant, v. Robert E. GIBSON and Ruth Gibson, Respondents.

No. 45887.

Supreme Court of Missouri, Division No. 2.

Dec. 9, 1957.

I. Frank Rope, Arnold N. Shanberg, Herbert M. Rope, Rope, Shanberg & Rope, Kansas City, for appellant.

Harvey Roney, Kansas City, and Virgil A. Julian, Independence, for respondents.

BARRETT, Commissioner.

This lawsuit is an incident to the marriage, finances, and divorce of Jane Kinsella Gibson, now Jane Kinsella Hughes, and Scott Gibson, particularly as these events have come to affect their respective parents, the Gibsons and the Kinsellas. This is a suit by Jane's mother, Mrs. Kinsella (her husband now being deceased), to set aside a deed from Jane and Scott to Scott's father and mother, Robert and Ruth Gibson. At the close of the plaintiff's evidence the trial court sustained the defendants' motion to dismiss the action for the reasons that the plaintiff failed to prove that the conveyance was without consideration or that it was made for the purpose of hindering, delaying or defrauding creditors, and upon judgment being accordingly entered Mrs. Kinsella has appealed.

At the outset the appellant urges that the court erred in permitting its judgment 'to be colored' by matters irrelevant and collateral to the main issue, such as whether Jane was the 'real moving party' in instituting and prosecuting the action. But, being a court-tried equity suit, this court considers such evidence as is deemed admissible and excludes from consideration evidence improperly admitted. Hussey v. Robison, Mo., 285 S.W.2d 603, 604. Nor is the case to be determined upon the appellant's failure to file a reply to the respondents' answer (V.A.M.S. Sec. 509.100), there was no motion for judgment on the pleadings (McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757), and the trial court did not treat the fact of the failure to file a reply as having any bearing upon its decision. The court having dismissed the plaintiff's action at the close of her evidence, the question here is whether the plaintiff's evidence made a prima facie case of a fraudulent conveyance, a conveyance made 'with the intent to hinder, delay or defraud creditors.' V.A.M.S. Sec. 428.020; Coleman v. Alderman, 357 Mo. 758, 210 S.W.2d 994. This important fact, the court's having dismissed the action at the close of the plaintiff's evidence, should be borne in mind throughout, and the opinion upon this appeal should in nowise be considered as an expression or indication of how the case should ultimately be decided upon its essential merits. Oldham v. Wright, 337 Mo. 170, 85 S.W.2d 483. It is the appellant's claim upon this appeal that her evidence 'raised a strong inference' that the conveyance was voluntary, that it showed certain 'badges' or indicia of fraud and, prima facie, was fraudulent as to her. It is said that there was no evidence of a valuable consideration for the conveyance and that the 'failure of an adequate consideration' destroyed the validity of the transfer 'regardless of the expressed absence of fraudulent intent.'

The background is this: Jane and Scott were married at Independence in 1943. Prior to the marriage Scott had purchased eighty acres of unimproved land on Bundschu Road from the Kansas City Life Insurance Company. He paid $1,000 of the purchase price and gave a $9,000 note and deed of trust to secure the balance. Within two months of the marriage Scott and Jane started building a home on the land--it was completed about a year and a half later, in April 1945. They were to make either quarterly or semi-annual payments on the original mortgage, and these they made for the first year or so with money advanced by their parents. Jane, in testifying for her mother in this case, said, 'Occasionally we were helped out by Mr. Gibson's parents and my parents.' By 1946 there were numerous judgments and claims, for the 'original delivery bills on the children,' doctors' bills, drug stores, gasoline filling stations and the like. Then there were numerous bills in connection with the house building, principally sizeable lumber bills. In 1945 Scott embarked upon the contracting business, dirt moving, building ponds and roads, and then he got into the rock quarry business. These ventures were most unsuccessful, consequently there were more debts, $9,000 or more. By 1948 Jane, speaking of the house, said that the mortgage was then six or seven thousand dollars, taxes were in arrears, 'and we had no way in the world to meet the payments or the taxes at that time, and all these other claims were existing; in fact, we were bankrupt, you might say.'

So, on January 13, 1948, Jane and Scott conveyed the eighty acres to Scott's father and mother, Robert E. and Ruth Gibson. In 1951 Mr. and Mrs. Gibson sold 52.5 acres of the tract to Mr. and Mrs. Bessmer, leaving 27.5 acres upon which the house and 'a lake' had been constructed. The 27.5 acres is the land involved in this suit. Jane and Scott continued living in the house, however, until December 1951, when Jane left and lived in St. Louis until June 1953. In June 1952, she instituted an action for a divorce against Scott. But the following June she returned to Kansas City and lived with Scott another year and on August 19, 1954, obtained a divorce.

In the meanwhile, throughout the years 1946, 1947, 1948 and, no doubt beyond, Jane's parents, Mr. and Mrs. Kinsella, were lending or advancing money to Scott and Jane. Four days after the institution of Jane's divorce suit, on June 13, 1952, Mr. and Mrs. Kinsella brought suit against Jane and Scott for the sums they had advanced or loaned. But it was not until August 19, 1954, that they were given a default judgment for principal and interest in the sum of $27,893.96. On the same day Mrs. Kinsella instituted this action against the Gibsons.

The Kinsellas' suit against Scott and Jane was for the principal sum of $20,289.68, $5,603.38 of which was advanced between December 4, 1944, and May 9, 1947, prior to the execution of the deed, and more than $14,000 was advanced after the execution and recording of the deed. In this connection Mrs. Kinsella in describing the indebtedness, in her deposition, said that the first item of $1,000 on December 4, 1944, was a loan to Jane in connection with the house, and on April 18, 1945, the next item of $1,000 was a loan 'to Jane Kinsella Gibson' also for the house. January 19, 1945, a check for $500 was a loan to Jane, and on December 24, 1945, a check to Eisel & Eisel for $103.38 was for screens for the house. The next item, March 6, 1946, a check for $2,500 was a loan to 'Gibson Contractors, Incorporated,' which she said was for the building of the house. On May 9, 1947, there was another $500 check to Gibson Contractors and on May 7, 1948, there was a check to the Columbian National Bank for $11,686.30 and this item 'was loaned on a piece of machinery,' it was paid to the bank 'for the purchase of a mortgage' which was transferred to Mr. Kinsella and released by him and given to Scott and Jane. On June 20, 1950, there was a check for $2,500 which Mrs. Kinsella thought, 'just offhand,' was a loan on an airplane Scott had purchased. Mrs. Kinsella 'thought' that in addition to the $11,686.30 Mr. Kinsella had 'invested' an additional $10,000 in the Gibson Contracting Company as a stockholder from which he had vainly expected some return.

In her deposition Mrs. Kinsella said, in connection with the advances, that she and Mr. Kinsella had made no investigation as to...