Krueger v. Vorhauer

• Decision Date: 28 June 1901
• Citation: 63 S.W. 1098,164 Mo. 156
• Parties: KRUEGER v. VORHAUER et al.
• Court: Missouri Supreme Court

63 S.W. 1098

164 Mo. 156

KRUEGER v. VORHAUER et al.

Supreme Court of Missouri, Division No. 2.

June 28, 1901.

FRAUDULENT CONVEYANCE—ACTION TO SET ASIDE—INTENT TO DEFRAUD.

1. A deed of trust was made and foreclosed. Thereafter plaintiff obtained a judgment against the maker for a tort committed after the foreclosure sale. Held, that he could not maintain a suit to set aside the conveyance, there being no evidence of an actual intent at that time to defraud plaintiff.

2. Schemes to defraud his existing and subsequent creditors, entered into by a party after making a deed of trust, cannot affect the validity of such deed.

3. Where, at the time of the execution of a deed of trust and a sale thereunder, the maker had only one current creditor, whose claim was satisfied before plaintiff obtained judgment for damages for a tort committed by the maker subsequent to such deed and sale, any fraud or intent to defraud such current creditor by making the trust deed cannot be set up by plaintiff to avoid it and the sale.

Appeal from St. Louis circuit court; Jacob Klein, Judge.

Suit by Henry A. Krueger against Emil Vorhauer and others. From a decree in favor of plaintiff, defendants appeal. Reversed.

Kehr & Tittmann, for appellants. O. A. Appel, Daniel Dillon, and John Dillon, for respondent.

SHERWOOD, P. J.

Equitable proceeding, having for its object the avoidance and cancellation of certain conveyances, transfers, and judgments, which are best described in the petition, which, in substance and effect, states: That plaintiff recovered a judgment against defendant Emil Vorhauer on March 18, 1896, in the circuit court, city of St. Louis, for $3,000, and that it is wholly unsatisfied; that on February 10, 1894, Emil Vorhauer was the owner in fee of certain real estate in St. Louis, fronting 60 feet on Mullanphy street, in city block, 2,314, being lot 35, the eastern 20 feet of lot 34, and the western 15 feet of lot 36; that, being indebted, and, in anticipation of becoming further indebted, said Emil Vorhauer placed a deed of trust for $5,500 thereon, maturing in two years, to Henry Vorhauer, as trustee for William Vorhauer, cestui que trust; that thereafter, on June 14, 1894, one George P. Pfeiffer placed a mechanic's lien on forty feet of Emil's land and the improvements thereon, in the sum of $3,804.45, and that suit was filed on said lien to the October term, 1894, of the circuit court of the city of St. Louis, and a default judgment was taken therein on December 29, 1894, for $3,816.47, and that said judgment was assigned to William Vorhauer on January 11, 1895; that on filing of said lien, Henry Vorhauer, trustee under the trust deed, refused to act, and Charles Erd succeeded him as trustee thereunder; that on July 12, 1894, Erd sold the property under the trust because of the said lien, and that Henry Vorhauer bought the property at that sale; that on April 25, 1894, Emil gave an irrevocable power of attorney to Henry to collect the rents on all real estate then owned by Emil until an indebtedness (amount not given) from Emil to Henry should thereby become discharged; that all said deeds, transfers, conveyances, assignments, etc., were in fact without consideration, were not in good faith; that the mechanic's lien and the suit thereon were not brought in good faith; that the judgment was collusively procured between Pfeiffer and the defendants herein; and that the deeds, conveyances, transfers, and assignments were made at the special instance, instigation, and request of Emil, and in confederation with William and Henry Vorhauer to evade the payment of Emil's existing and subsequent indebtedness, and to enable Emil to conceal and cover his real-estate titles, with the intent to hinder, delay, and defraud existing and subsequent creditors; that the title to the real estate is held by Henry, and as to the judgment by William, secretly, etc., for the sole use and benefit of Emil; that an execution on plaintiff's judgment against Emil has been returned nulla bona. Wherefore plaintiff says that the deeds, conveyances, transfers, and assignments, as well as the said judgment obtained by Pfeiffer, and the assignment thereof, are fraudulent, and are, as to the judgment of this plaintiff, void, and prays that as to the judgment of this plaintiff they may be for naught held, canceled, and annulled; that the court declare plaintiff's judgment a lien on the real estate paramount and freed from any title, etc., of Henry and William Vorhauer, however obtained; and for further relief. Defendant filed a general denial. After hearing the evidence in the cause, the court entered the following decree, June 23, 1897: "That the deed of trust for $5,500 of Emil Vorhauer and wife be null and void as against the judgment of $3,000 in favor of Henry A. Krueger, and describing the sixty feet of land on Mullanphy street; that the sale made by Erd thereunder on July 12, 1894, be null and void as against Krueger's $3,000 judgment; and that Pfeiffer's mechanic's lien and the judgment...