Krueger v. Vorhauer
| Decision Date | 28 June 1901 |
| Citation | 63 S.W. 1098,164 Mo. 156 |
| Parties | KRUEGER v. VORHAUER et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Reversed.
Kehr & Tittmann for appellants.
(1) The deed of trust of February 10, 1894, from Emil Vorhauer to Henry Vorhauer, as trustee for William Vorhauer, to secure the payment of $ 5,500, and the sale made thereunder July 12 1894, by the substituted trustee, Erd, to Henry Vorhauer were based upon valuable considerations and were bona fide and lawfully made. Therefore, even if Emil Vorhauer made the deed of trust with the intent to defraud his wife of a prospective judgment for alimony against him, yet as against the bona fide holder of the deed of trust and the purchaser thereunder, the conveyances were protected by the statute and should not have been set aside. R. S. 1889, sec. 5175. (2) The claim of Emil's wife for alimony and support was a present existing demand and claim even before alimony was granted her. She was a present existing creditor. Foster v. Foster, 56 Vt. 546; Picket v. Garrison, 76 Iowa 347; Feigley v. Feigley, 7 Md. 537; Hinds v. Hinds, 80 Ala. 225; Livermore v. Boutelle, 11 Gray, 217; Bouslough v. Bouslough, 68 Pa. St. 495. (3) Even if Emil Vorhauer made the deed of trust of February 10, 1894, with intent to defraud his wife of her claim for alimony, yet, as there were no other current creditors who might have been hindered or delayed, and her judgment for alimony had been paid and satisfied before plaintiff recovered judgment for the tort inflicted upon him by Emil, before he became a creditor and before he commenced this suit, he can not set up the old fraud in avoidance of the conveyance and can not maintain this bill. Gray v. Folwell (N. J.), 41 A. 869; Claflin v. Mess, 30 N.J.Eq. 212; Hill v. Bowman, 35 Mich. 191. (4) Respondent recovered judgment against Emil Vorhauer March 18, 1896, for a tort (shooting him) committed May 1, 1895. The deed of trust was executed February 10, 1894; hence, respondent became a subsequent creditor. There was no evidence that Emil intended to go into any hazardous or other business, or that he contemplated future indebtedness, or that, in 1894, he intended to shoot respondent in 1895, or at any other time, or that by his conveyance in 1894 he intended to defraud the respondent or any other future creditor. Therefore, respondent can not maintain this bill. This is the wellsettled law in Missouri, as well as in other States, even as to voluntary conveyances. Boatmen's Savings Bank v. Overall, 16 Mo.App. 515; Mittelberg v. Harrison, 11 Mo.App. 136; Boyle v. Boyle, 6 Mo.App. 594; Ins. Co. v. Sandfelder, 9 Mo.App. 285; Payne v. Stanton, 59 Mo. 159; Grocery Co. v. Smith, 74 Mo.App. 419; Pepper v. Carter, 11 Mo. 540; Lionberger v. Baker, 88 Mo. 447; Frank v. Carothers, 108 Mo. 569; Bueks v. Moore, 36 Mo.App. 529; Snyder v. Free, 114 Mo. 360; Loehr v. Murphy, 45 Mo.App. 519; Bonney v. Taylor, 90 Mo. 63; Fisher v. Lewis, 69 Mo. 629; Hurley v. Taylor, 78 Mo. 239; Lauder v. Ziehr, 150 Mo. 413; Lynch v. Raleigh, 3 Ind. 273; Horn v. Volcano Co., 13 Cal. 62; Kipp v. Hanna, 2 Bland Ch. 26; Wright v. Henderson, 7 How. (Miss.), 539; Stone v. Myers, 9 Minn. 303; Hall v. Sands, 52 Me. 355; Kimble v. Smith, 95 Pa. St. 69; Harlan v. McLaughlin, 90 Pa. St. 293; Mathai v. Thomas, 24 Kas. 780; Evans v. Lewis, 30 Ohio St. 11; Springer v. Bigford, 160 Ill. 500; Brindage v. Cheneworth, 101 Iowa 256; Cole v. Brown (Mich.), 72 N.W. 247; Neuberger v. Keim, 134 N.Y. 38; Hilton v. Morse, 75 Me. 258; Heath v. Bank (Tex.), 46 S.W. 123; Wait on Fraud. Con. (3 Ed.), p. 366, sec. 202. (5) In the present case, the conveyances were all based upon adequate consideration. Hence, respondent could obtain relief only by showing that they were made with the intent to defraud him and that the grantees participated therein. Hall v. Sands, 52 Me. 355; Henley v. Taylor, 78 Mo. 238. (6) Respondent's claim against Emil Vorhauer was based upon a tort. He can avoid the conveyances only by showing that they were made subsequent to the rendition of the judgment based upon the tort, or with the intent to defeat the satisfaction of a judgment based upon such tort. Meserve v. Dyer, 4 Me. 52; Hull v. Sands, 52 Me. 355; Kaiser v. Ulrich, 32 Mich. 88; Hill v. Bowman, 35 Mich. 191; Evans v. Lewis, 30 Ohio St. 11; Langford v. Fly, 7 Humphrey, 585; Lillard v. McGee, 4 Bibb, 165; Fowler v. Frisbee, 3 Conn. 320. (7) The declarations made by Emil Vorhauer to the respondent and to his mother, after the execution and delivery by him of the deed of trust and in the absence of the remaining defendants, were not competent evidence against them. Frick v. Algermissen, 25 Mo.App. 186; Mueller v. Weitz, 56 Mo.App. 36; Albert v. Besel, 88 Mo. 150; Stewart v. Thomas, 35 Mo. 202; Clark v. Cox, 118 Mo. 652.
O. A. Appel, Daniel Dillon and John Dillon for respondent.
(1) Land bought in the name of one person, but actually paid for with the money of another, belongs in equity to the person whose money paid for it. Kelly v. Johnson, 28 Mo. 249; Baumgartner v. Guessfeld, 38 Mo. 36; Shaw v. Shaw, 86 Mo. 594. (2) When the conveyance is voluntary and made with actual fraudulent intent of defrauding existing creditors, subsequent creditors may impeach it. The great weight of authority, both in England and this country, sustains this proposition. 1 Story's Eq. Jur., sec. 36; Pomeroy Eq. Jur. (2 Ed.), sec. 973; 2 Kent's Comm. (14 Ed.), star page 442; McLean v. Johnson, 43 Vt. 57; Parkham v. Welsh, 16 Pick. 231; Day v. Cooley, 118 Mass. 524; Seals v. Robinson, 75 Ala. 363; Hall v. Sands, 52 Me. 355; Marstin v. Marstin, 54 Me. 476; Smith v. Carlisle, 17 N.H. 417; Coolidge v. Melvin, 42 N.H. 534; Claflin v. Mess, 30 N.J.Eq. 212; Alloise v. Day, 30 N.J.Eq. 211; Yoney v. McGee, 38 Ark. 419; Pratt v. Case, 22 Grattan, 330; Silverman v. Greaser, 27 W.Va. 553; Benten v. Jones, 8 Conn. 190; Flynn v. Williams, 7 Ired. (N. Car.) 32; Moore v. Blenheim, 19 Md. 172; Wilcox v. Morgan, 2 Col. 473, p. 478; Sexton v. Wheaton, 8 Wheaton, 229; Wallace v. Penfield, 102 U.S. 260; Pepper v. Carter, 11 Mo. 540; Payne v. Stanton, 59 Mo. 158; Frank v. Caruthers, 108 Mo. 574; Lander v. Zeihr, 150 Mo. 413; Mutual Life v. Sandfelder, 9 Mo.App. 285. (3) If the debts existing at the time of the voluntary conveyance be not paid when subsequent creditor files his bill, he has the right to prosecute his suit and have the voluntary conveyance set aside. Claflin v. Mess, 30 N.J.Eq. 211. In this case the judgment for Minnie Vorhauer for $ 6,000 has not yet been satisfied, nor had Minnie Vorhauer assigned it when this suit was commenced. She was then the owner of it and it was wholly unsatisfied. Since this suit has begun she assigned it for $ 3,500 to Edward Vorhauer, who still holds it against Emil for the whole amount, $ 6,000 and interest. Change of creditors is no satisfaction. Lander v. Ziehr, 150 Mo. 414. (4) If it is intended to assert that a person who has a cause of action growing out of a tort can not be considered a creditor until he has reduced his claim to judgment, then all we have to say is that the authorities are the other way. Bougard v. Block, 81 Ill. 186; Westmoreland v. Powell, 59 Ga. 256; Hunsinger v. Hofer, 110 Ind. 390; Welde v. Scotten, 59 Md. 72; Thorp v. Leibrecht, 66 N.J.Eq. 499.
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 sixty feet on Mullanphy street in city block 2314, being lot 35 the eastern twenty feet of lot 34 and the western fifteen 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, and 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...
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