Muster v. Mallen
| Citation | 163 S.W.2d 578 |
| Decision Date | 03 June 1942 |
| Docket Number | 37790 |
| Parties | MUSTER v. MALLEN |
| Court | Missouri Supreme Court |
Rehearing Denied July 1, 1942.
Frank W. Armstrong, of Plattsburg, and A.F. Harvey, of Maryville for appellant.
R.H Musser, of Plattsburg, for respondent.
DALTON, Commissioner.
This is an action in equity to cancel and set aside an alleged fraudulent conveyance and to secure an accounting for rents and profits. The trial court found for defendant and dismissed plaintiff's petition. Plaintiff has appealed.
The deed in question is dated January 27, 1931, and was executed by Arthur Mallen to his son Edward Mallen. It conveyed 40 acres of improved real estate in Clinton County, and was duly filed for record on September 17, 1932. This suit to set the conveyance aside was instituted prior to the September term, 1940, of the circuit court of said county. The petition charged that Arthur Mallen, for the purpose of hindering, delaying and defrauding his creditors, wrongfully and fraudulently deeded the land to his son, Edward Mallen, without consideration; that Arthur Mallen remained in the possession thereof; and that Edward Mallen conspired and confederated with his father to aid and assist in concealing and fraudulently disposing of and covering up his said property to prevent the same being reached by creditors.
Arthur Mallen, the grantor in the deed sought to be set aside, was not made a party to the proceeding. His son, the grantee in the deed, is the only defendant. This defect of parties was raised by answer. Defendant further denied generally the allegations of the petition, alleged that at the time of the conveyance the described real estate was the homestead of the said Arthur Mallen and was at all times exempt from attachment and execution, as provided by § 608, R.S.1929, Mo.R.S.A. § 608; and that Arthur Mallen was further entitled to exemptions as provided by § 1160, R.S.1929, Mo.R.S.A. § 1324. Defendant claimed ownership of the real estate and expressly denied that he had not paid the full consideration therefor.
The evidence discloses that at the time of the conveyance Arthur Mallen resided on the described land with six children, five of whom were minors. It had been his home for a great many years. The tract was free from encumbrance and the improvements consisted of a two story, eight room, frame house erected about 1897, an old barn, a garage, a hog shed, a hen house and 'pretty good fences.' There was evidence that the house had a stone foundation; that it had high walls and was out of date, but was, perhaps, better than the average house in the county. The land was well located on a 'slab road' about a mile west of Plattsburg. Some witnesses referred to it as good land, although one said it had some 'hard pan in it' and another said it didn't 'lay as nice' as some other land. Most of the land could be cultivated.
At the date of the conveyance Arthur Mallen owned and operated more than 400 acres of land in Clinton and Clay counties. All except the 40 acres in question was heavily mortgaged. He also owned cattle, hogs, mules, feed, tools, and other personal property. He was heavily involved financially and shortly thereafter suffered serious financial reverses. In view of the conclusions we have reached, it will be unnecessary to consider the value of his assets and the extent of his liabilities.
Arthur Mallen had been in ill health for some time and it became necessary for him to go to Rochester, Minnesota, for an operation and medical treatment. Immediately before leaving, he deeded the 40 acres of land in question to his son, Edward Mallen. The deed recited a consideration of $ 4,500, but the evidence indicates that at the date of the execution of the deed no consideration was paid. The son was about 22 years of age and had about $ 1,500 in savings. The evidence shows that, perhaps, $ 100 had been advanced by the son to his father prior to the execution of the deed, and the deed was executed and delivered with the verbal understanding that the son 'would keep up the family and pay school expenses of the children, buy the groceries * * * buy the clothes and pay all he could on (the grantor's) hospital bills and other bills.' He was to pay at his father's request, if possible, certain small debts about town, after paying the 'running expenses.' There was no fixed consideration agreed upon, and no agreement that the grantee would pay or cause to be paid the consideration stated in the deed, but he was to pay 'all the running expenses' of the home and there was 'no way of telling how much that would be.'
The son promptly took charge of the real estate and proceeded to comply with the terms of his agreement. He assisted in furnishing funds for hospital and doctor bills, looked after the younger children, supported them and sent them to school, and paid certain other items at his father's direction. There is evidence that in so doing he expended $ 2,500 or more during the first year after the delivery of the deed; that $ 3,200 was paid within three years; and that additional payments were subsequently made. The father, on his return from the hospital and after receiving further medical treatment elsewhere, made his home with his son.
There is evidence that the son was farming 200 acres of rented land on his own responsibility prior to receiving the deed from his father. Two of the defendant's sisters, who were nurses and away from home, gave financial aid in connection with the father's medical treatment. Subsequently, in 1931 the son bought a 45-50 acre tract of land for $ 1,300. In 1933 he purchased a 100-acre tract of land for $ 3,100. On the last tract it appears that he gave a $ 2,300 purchase money mortgage. All of this land had belonged to his father and was purchased from an insurance company after they had foreclosed and bought it in.
On December 2, 1939, Arthur Mallen was adjudged a bankrupt. No reference was made in his schedules to any real estate and no real estate was claimed as exempt. The trustee of his estate in bankruptcy seeks to set aside the deed to the son.
We think the decisive issue in the case is whether, at the time of the conveyance, the property conveyed was homestead property and exempt under § 608, R.S.1929, now § 608, R.S.1939, Mo.R.S.A. § 608. There was no suggestion that any of the indebtedness mentioned in the evidence was incurred prior to the acquisition of the homestead. The only matter in dispute on this issue is the reasonable cash market value of the property at the date of the...
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