Meyer Bros. Drug Co. v. White

• Decision Date: 19 November 1901
• Citation: 165 Mo. 136,65 S.W. 295
• Parties: MEYER BROS. DRUG CO. v. WHITE et al.
• Court: Missouri Supreme Court

65 S.W. 295

165 Mo. 136

MEYER BROS. DRUG CO. v. WHITE et al.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

FRAUDULENT CONVEYANCE — SUFFICIENCY OF CONSIDERATION — ACTUAL FRAUD — EVIDENCE — APPEAL — QUESTIONS FOR REVIEW.

1. W., an insolvent, conveyed certain land, by deed absolute in form, to B., who was the cashier of a bank. No consideration passed from B. to W., but W. was indebted to the bank in a sum largely in excess of the value of the land conveyed, and it was in good faith intended by them that the conveyance should be applied pro tanto on the indebtedness to the bank. Held, in an action by W.'s creditor to set aside the conveyance as fraudulent, that the grantee took the title in trust for the bank, which was a pre-existing creditor, and the debt owing by the grantor to the bank was a good consideration for the deed.

2. W., an insolvent, conveyed certain land by deed absolute in form to B., who was a cashier of a bank. No consideration passed from B. to W., but W. was indebted to the bank in a sum largely in excess of the value of the land conveyed, and it was intended that it should be applied on such indebtedness. W. and B. were brothers-in-law, and in all the dealings with the bank covering a series of years W. dealt only with B., so that in W.'s mind B. was the bank. W. determined to prefer this indebtedness, and for that purpose executed the conveyance intending it to be an honest preference, and B. accepted the deed for the bank's benefit without knowing of the financial condition of the grantor. Held, in an action by W.'s creditor to set aside the conveyance as fraudulent, that the evidence was insufficient to show the conveyance fraudulent as against creditors.

3. The plaintiff in an action under Rev. St. 1899, § 416, authorizing an attaching creditor to maintain an action to set aside fraudulent conveyances of attached property, has no interest in the decree adjusting the rights of the defendants between themselves, entered subsequent to the dismissal of the action, and is not prejudiced thereby; and hence the court, on his appeal, will not review such decree.

Appeal from circuit court, Monroe county; David H. Eby, Judge.

Bill by the Meyer Bros. Drug Company against Charles T. C. White and others. From a decree dismissing the bill, plaintiff appeals. Affirmed.

T. T. Rodes, R. N. Bodine, R. B. Bristow, and McKeighan & Watts, for appellant. J. H. Whitecotton, Thos. H. Bacon, and Jas. W. Lester, for respondents.

BRACE, P. J.

The defendants in this case are Charles T. C. White, William Hay Bockes, and the First National Bank of Saratoga Springs, N. Y. By general warranty deed dated the 8th day of May, 1893, the said White and his wife, Mary E. White, conveyed a tract of land situate in Monroe county, described in the petition as "containing 600 acres, more or less, subject to a mortgage of $8,000, due June 1, 1896," to the said Bockes, which deed was on the same day duly acknowledged and recorded among the land records of said county, and afterwards delivered to the said Bockes. At the time of the execution of this deed the said defendant White was indebted to the plaintiff on three promissory notes, — one dated December 12, 1892, for $1,146.95; one dated January 12, 1895, for $1,154; and one dated February 12, 1893, for $1,161.96; bearing interest from date at the rate of 8 per cent. per annum, — in the aggregate sum of $3,462.91, with interest, according to the tenor of said notes. Afterwards, on the 3d day of June, 1893, the plaintiff instituted suit by attachment on said promissory notes in the circuit court of said county, and on the same day the writ of attachment was levied upon said land. On the 6th of June, 1893, he filed notice lis pendens thereof, and on the same day instituted this suit, which is an action to set aside and annul said deed on the ground that the same "was without consideration, and was made with the fraudulent intent on the part of Charles T. C. White to hinder, delay, and defraud his creditors, and especially to hinder, delay, and defraud this plaintiff; and that said deed was, after the institution of the attachment suit, * * * delivered by said defendant White to and accepted by the said defendant Bockes with full knowledge on his part of the fraudulent intent aforesaid of the said Charles T. C. White, and with the further fraudulent intent on the part of each of defendants to hinder, delay, and defraud the creditors of Charles T. C. White, and especially to hinder, delay, and defraud this plaintiff." The consideration recited in the deed is $22,000. Bockes is a brother-in-law of White. At the time of the execution of the deed, and for many years before, Bockes was, and since has been, the cashier of the First National Bank of Saratoga Springs, N. Y., and as such was its chief executive officer and general manager. The deed was signed by White and wife, and acknowledged at Paris, the county seat of Monroe county, filed by White for record, and forwarded by mail addressed to "Wm. Hay Bockes, Cashier Saratoga Springs, New York"; and the evidence tends to prove that it was delivered before the attachment suit was instituted. The evidence also tends to prove that the land at that time was worth about $15,000. It also appears from the evidence that White at that time was insolvent, was not indebted to Bockes, and that Bockes personally paid no consideration for the deed; but that White was indebted to the bank in the principal sum of $25,831.91, for money obtained by him from the bank, through Bockes, on discounts and renewals of White's paper, running through a series of years, which indebtedness was evidenced by promissory notes of dates, in amounts, and due as follows: April 5, 1898, $9,264.50, on demand; December 17, 1892, $4,480, due March 8, 1893; December 19, 1892, $2,890, due April 27, 1893; December 31, 1892, $238.41, due May 3, 1893; January 9, 1893, $4,182, due April 24, 1893; January 12, 1893, $4,777, due May 3, 1893. It does not appear that Bockes, the bank, or any of its officers, were cognizant of the financial condition of White at the time the deed was made. Afterwards, on...