McKinney v. Hutson

• Decision Date: 17 April 1935
• Citation: 81 S.W.2d 951,336 Mo. 867
• Parties: Geneva E. McKinney, Defendant in Error, v. America Hutson, Arthur Bryant and Carrie Bryant, Plaintiffs in Error
• Court: Missouri Supreme Court

81 S.W.2d 951

336 Mo. 867

Geneva E. McKinney, Defendant in Error, v. America Hutson, Arthur Bryant and Carrie Bryant, Plaintiffs in Error

Supreme Court of Missouri

April 17, 1935

Appeal from Cole Circuit Court; Hon. W. S. Stillwell Judge.

Affirmed.

John H. Windsor for plaintiff in error.

(1) When a deed, in due form with apt words of conveyance and transfer of title, is assigned and acknowledged, and is delivered, title passes. Jones v. Jefferson, 66 S.W.2d 557; Chambers v. Chambers, 227 Mo. 262; 18 C J. 197. (a) A voluntary conveyance is one not founded on a valuable consideration. Where there is a valuable consideration no matter how inadequate, the conveyance is not voluntary and actual intent to defraud must be found to defeat the transfer. Commercial Bank of Boonville v Kuehner, 115 S.W. 510; Vaughn v. Green, 29 S.W.2d 57. (b) The burden of proving that a conveyance was fraudulent as to creditors rests upon the party seeking to set it aside. Moss v. Fitch, 212 Mo. 484; Stahlhuth v. Nagle, 229 Mo. 570. Fraud as to creditors in a conveyance cannot be shown by mere inference but must be proved. Ulrich v. Pierce, 233 S.W. 401. One impeaching a conveyance for a valuable consideration for fraud must show that the grantor's purpose in selling was to defraud a creditor and the grantee participated in the fraud. Emlet v. Gillis, 63 S.W.2d 12. (2) In order to set aside a conveyance the grantee must have participated in the fraudulent purpose, with intent to assist in it. Vaughn v. Green, 29 S.W.2d 57; Emlet v. Gillis, 63 S.W.2d 12; Barber v. Nunn, 275 Mo. 565, 205 S.W. 14; Farmers Bank v. Handly, 9 S.W.2d 892; Jones v. Jefferson, 66 S.W.2d 555. (3) A debtor who conveys as in the case at bar must be one who was a debtor at the time of the conveyance or who had been sued or was about to be sued. Snitzer v. Pokres, 23 S.W.2d 161; Jones v. Jefferson, 66 S.W.2d 560.

Ira H. Lohman and H. P. Lauf for defendant in error.

(1) A judgment creditor may have land of debtor fraudulently conveyed sold under execution and then becoming the purchaser at the execution sale, by a suit in equity have the conveyance declared fraudulent and title vested in him. Oldhem v. Wade, 200 S.W. 1056, 273 Mo. 231. (2) Fraud in conveyance by debtor must be proved and not presumed but intent to defraud may be deduced from circumstances, not being susceptible of direct proof. Munford v. Sheldon, 9 S.W.2d 907. (3) Even where a sufficient consideration is paid by grantee if both grantee and grantor intend to defraud existing creditor as to such creditor the conveyance is void. Stone v. Spencer, 77 Mo. 356; Bank v. Buck, 123 Mo. 157; Martin v. Estes, 132 Mo. 402; Emlet v. Gillis, 63 S.W.2d 12. (4) A voluntary conveyance made by debtor of all his assets is fraudulent as to creditors then existing regardless of his intent. Payne v. Stanton, 59 Mo. 158; Bohannon v. Combs, 79 Mo. 305; White v. McPheeters, 75 Mo. 286; Snyder v. Free, 114 Mo. 360; Bank v. Kuehner, 135 Mo.App. 63; Friedel v. Bailey, 44 S.W.2d 9, 329 Mo. 22; Sec. 3117, R. S. 1929. (5) Defendant in error's status as a creditor dates back to the time she contracted to marry Arthur Bryant and if the voluntary conveyance was actually made at the time plaintiff in error asserted, then it was void as to defendant in error who was an existing creditor. Welch v. Mann, 193 Mo. 323. (6) An unusual transaction of itself is a badge of fraud. Benne v. Schnecke, 100 Mo. 256; Snell v. Harrison, 104 Mo. 188.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

This suit is in two counts. By the first count plaintiff, claiming title thereto, prayed the court to find certain conveyances, purporting to pass title to 160 acres of land, situate in Cole County, from defendant Arthur Bryant and ultimately vesting same in his wife, defendant Carrie Bryant, to be fraudulent and void and to cancel and set same aside and vest the title to said land in plaintiff. By the second, an ejectment, count plaintiff sought to oust defendants Arthur and Carrie Bryant, husband and wife, from the possession of the land and recover damages for withholding the possession thereof from plaintiff. Defendants' answer to each count was a general denial. The cause was tried as an equity suit and the court found for plaintiff on both counts and entered a decree declaring the conveyances through and by which defendant Carrie Bryant derived her claim of title fraudulent and void, that title to the land was vested in plaintiff and that she was entitled to the possession thereof with damages in the sum of one dollar. The defendants have brought the case here for review by a writ of error duly issued out of this court.

An understanding of the issues directly involved in this suit requires a resume of the prior course of events. Defendant Arthur Bryant a single man, was engaged in farming. He owned two, eighty-acre farms (the land involved), on one of which he resided, near Centertown in Cole County. His widowed mother made her home with him. Plaintiff a single woman resided at the home of her parents on a nearby farm. She was a school teacher. Bryant "courted" plaintiff for seven years prior to December 1, 1918, on which date they entered into an agreement, "became engaged," to be married "within a reasonable time thereafter" but due to the objections and "persuasions" of his mother Bryant continuously delayed and postponed marriage. In 1926 the engagement, "by mutual agreement" was terminated but "about the first day of February, 1928, the engagement and agreement to marry was again entered into . . . by the terms of which each agreed to marry the other within a reasonable time thereafter." Though plaintiff was at all times willing to marry Bryant and at no time sought or occasioned any delay or postponement of the marriage he continued to make excuses, resort to evasions and "put her off from time to time" until February, 1929, when he informed her he did not intend to, and would not, marry her. On February 3, 1929, plaintiff gave birth to a child. Bryant acknowledged, and apparently at no time either denied or undertook to deny, that he was the father of plaintiff's child. He signed a statement to that effect endorsed upon, or attached to, the birth certificate filed by the attending physician. Though plaintiff, her father and her sister urged him to carry out his agreement and promise to marry plaintiff Bryant refused to do so. The inference arises that as early as sometime in 1928 his affections had shifted to one Carrie Groom, whom he married June 2, 1930 (the defendant herein Carrie Bryant). December 22, 1928, was the last time prior to the birth of the child that Bryant called on plaintiff. A few days after the birth of the child plaintiff's sister and Dr. Leach, who attended plaintiff, went to Bryant's home. The sister testified that, on that occasion, Bryant said he could not marry plaintiff "as long as his mother lived" that if they "went to court" he had two farms (referring to the land here involved) and he would just as leave it go that way as any other way." Though he promised to come to see plaintiff he did not do so and on February 28, plaintiff's father and sister (Goldie) called at the Bryant home but he was not at home. Upon his return home later that day he wrote and dispatched the following letter to plaintiff.

"Dear Geneva: When I come back from town Ma told me that Goldie and your father was to see me. What did they want? I received your letter some few days ago. You asked me why I did not come to see you. Well we done wrong and that is where we sinned. I have always had great respect for your folks and I am so shamed and hate it so bad that I don't want to see anyone I know. . . . You should not have let this be known for you know all about your condition in one month afterwards. I am just like I always told you. I have my mother to take care of and I don't pretend to marry anyone as long as she lives. If you don't want that child take it to the orphans home. There is one consolation Centertown and Elston community is a mere fly speck on this universe and we don't have to live here all our lives. If we had no responsibilities I would be willing to leave here and never come back. But I have my old mother wholly dependent upon me, but I hope she outlives me. She may do it because I have stomach trouble the very worst kind. No more for this time, as ever Bud."

Plaintiff's father testified that sometime during February, shortly after the birth of the child, he talked with Bryant; that Bryant asked "what do you want me to do about it;" that he replied "marriage would be the best" and Bryant said "I'll never marry," whereupon he told Bryant if he did not "do what was right" he "was liable to be sued" and Bryant replied "I have got two farms I would just as soon see go that way." Sometime in March Bryant called on plaintiff at her father's home. Plaintiff says that he inquired "what I would take to settle;" that she told him if he would marry her she would give her promise to get a divorce and he "would not have to bother with me," but he refused to consider the proposal. Bryant seems to have dismissed and refused any further negotiations with plaintiff or her family. The latter part of February or first part of March, Bryant discussed the matter with his brother Emmett who was called as a witness for plaintiff. Emmett testified that on that occasion Arthur referred to the two farms which he owned and proposed to put "everything over in my name" and "wanted me to take possession of the land" and "take possession of everything," but that he told Arthur it was "too late now." Emmett Bryant's wife, stated that sometime, she thinks about March, Arthur Bryant told her "he had a good notion to turn everything over to" her...