Oberneir v. Treseler

• Decision Date: 24 November 1885
• Parties: PETER OBERNEIR, Respondent, v. ELIZA TRESELER ET AL., Appellants.
• Court: Missouri Court of Appeals

19 Mo.App. 519

PETER OBERNEIR, Respondent,

v.ELIZA TRESELER ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 24, 1885.

APPEAL from the St. Louis Circuit W. H. HORNER, Judge.

Affirmed.

MUENCH & CLINE, for the appellants: The relinquishment of dower is a sufficient consideration for a provision for the wife. Bump, Fraud. Con. 310; Woodson v. Pool, 19 Mo. 344.

T. A. RUSSELL for the respondent: A voluntary conveyance by a man to his wife, while in debt, is fraudulent and void as to existing creditors. Potter v. McDowell, 31 Mo. 62; Pawley v. Vogel, 42 Mo. 291-303; White v. McPheeters, 75 Mo. 286-294; Hastings v. Crossland, 13 Mo. App. 592. And it is not necessary that the grantor should be insolvent at the time, or that he contemplated a fraud upon his creditors. Potter v. McDowell, and White v. McPheeters, supra; Bohannon v. Combs, 79 Mo. 305-312. “If a conveyance is made without consideration, it is void as to existing creditors, without more.” Hurley v. Taylor, 78 Mo. 238.

LEWIS, P. J., delivered the opinion of the court.

The defendants, Henry and Eliza Treseler, were husband and wife prior to April 28, 1884, when they were divorced. In January, 1883, Henry Treseler borrowed two hundred dollars from the plaintiff, giving his note at nine months for repayment. In May, 1883, Treseler desired to convey his homestead property on Twenty-sixth street and Cass avenue to one Klostermann, for $7,500, but his wife refused to join in the conveyance, until he agreed to transfer for her sole benefit a certain other lot on Cass avenue, together with one on O'Fallon street, and also to pay her $2,000 from the proceeds of the sale to Klostermann. There was an incumbrance of $3,000 on the homestead property, which the vendee was to assume as part of the purchase money. There was also an incumbrance of $1,700 on the O'Fallon street lot, and Treseler, besides his indebtedness to the plaintiff, owed his mother four hundred dollars. When the parties met to execute the conveyances, Treseler caused to be included in the one for his wife's benefit four lots in Taylor avenue addition, which had not hitherto been mentioned. The testimony tended to show that this was a purely voluntary act on Treseler's part, and that Mrs. Treseler had no intimation of it until she read it in the deed, at the time of the execution and delivery. She, of course, made no objection. Treseler conveyed, for an expressed consideration of $3,200, to Mrs. Noltman, his wife's mother, who thereupon conveyed to Mrs. Treseler. No money was paid, or intended to be paid, except by Klostermann, who paid the $4,500 balance of purchase money in cash. In June following, Treseler paid his wife two hundred dollars of the $2,000 promised, but the remainder was never paid. On April 30, 1884, Treseler confessed judgment in favor of the plaintiff for $215.59. He was then insolvent, and has continued so to be, so that execution against him was unavailable. The object of the present action is to enforce payment of this judgment out of the property conveyed through Mrs. Noltman to Mrs. Treseler. There was a decree for the plaintiff as to the Taylor avenue lots only; and from this judgment Mrs. Treseler appeals.

We think the decree was right. The force of the arguments against it may be condensed into the proposition that the conveyance...