Oetting v. Green

• Decision Date: 01 December 1942
• Docket Number: No. 38164.,38164.
• Parties: WM. A.H. OETTING v. MINNIE K. GREEN and FLORA LENZ, Appellants.
• Court: Missouri Supreme Court

166 S.W.2d 548

WM. A.H. OETTING v. MINNIE K. GREEN and FLORA LENZ, Appellants.

No. 38164.

Supreme Court of Missouri.

Division One, December 1, 1942.

Appeal from Johnson Circuit Court. — Hon. Leslie A. Bruce, Judge.

AFFIRMED.

Gayles R. Pine for appellants.

(1) The court erred in determining this case as an action in equity to quiet title because the suit was purely an action at law under the pleadings filed at the time of trial. Rains v. Moulder, 90 S.W. (2d) 81; Ebbs v. Neff, 30 S.W. (2d) 616, 325 Mo. 1182; Stafford v. Shinabargar, 81 S.W. (2d) 626, 336 Mo. 856; Stanton v. Leonard, 130 S.W. (2d) 487, 344 Mo. 998; Rhodus v. Geatley, 147 S.W. (2d) 631, 347 Mo. 397; Bryan v. McCaskill, 175 S.W. 961; Mendenhall v. Pearce, 20 S.W. (2d) 670, 323 Mo. 964. (2) The court erred in overruling defendants' motion to strike plaintiff's amended petition filed long after trial of the cause because said amended petition stated a cause of action in equity when the case was tried under the pleading as an action at law, said amended petition alleged new issues of fraud, insolvency and no consideration which defendants were not permitted to meet and offer evidence to rebut same. Sinclair Refining Co. v. Wyatt, 149 S.W. (2d) 353, 347 Mo. 862; Prichard v. Dubinsky, 89 S.W. (2d) 503, 338 Mo. 360; Delaney v. Delaney, 245 S.W. 1075; Neville v. D'Oench, 34 S.W. (2d) 491; Scott v. K.C. Public Serv. Co., 115 S.W. (2d) 518. (3) The court erred in finding and deciding the case in favor of plaintiff because the judgment of the court was against the law and the evidence. The court erred in deciding the case in favor of the plaintiff because under all the evidence in the case judgment should have been in favor of the defendants. (a) Deeds prima facie genuine. Sec. 1850, R.S. 1939; Wells v. Pressy, 105 Mo. 164. (b) Burden of proof. Wall v. Bledy, 161 Mo. 625; Garesche v. McDonald; 103 Mo. 1; Southern v. Nichols, 202 Mo. 309; McCluer v. White, 93 S.W. (2d) 696; Minium v. Slaven, 93 S.W. (2d) 869; Citizens Bank v. Meters, 29 S.W. (2d) 1090, 329 Mo. 849. (c) Consideration for deeds. Bank v. Graham, 76 S.W. (2d) 376; Gravemon v. Huncker, 139 S.W. (2d) 494; Farmers Bank v. Funk, 92 S.W. (2d) 587, 328 Mo. 508; Farmers Bank v. Kendrick, 108 S.W. (2d) 62, 341 Mo. 571; Green v. Wilks, 109 S.W. (2d) 859. (d) Insolvency. Minium v. Slaven, supra; Claber v. Booth, 49 S.W. (2d) 181; Citizens Bank v. Hilkemeyer, 29 S.W. (2d) 1090, 325 Mo. 849; McCluer v. White, 93 S.W. (2d) l.c. 699-70. (e) Laches of plaintiff. Palfrey v. Killian, 27 S.W. (2d) 462; Klebba v. Struempf, 23 S.W. (2d) 205; Breit v. Bowland, 100 S.W. (2d) 599.

Ike Skelton for respondent Wm. A.H. Oetting.

(1) The petition, answer and reply, and the respective prayers thereof, raise equitable issues and pray for equitable relief and this cause is in equity on the pleadings. Kimberlin v. Roberts, 341 Mo. 267, 107 S.W. (2d) 24; Mahaffey v. Lebanon Cemetery Assn., 253 Mo. 135, 161 S.W. 701; Gloyd v. Gloyd, 293 Mo. 163, 239 S.W. 73; Canty v. Halpin, 294 Mo. 118, 242 S.W. 97. (2) Appellants, by construing the pleadings at the time of the trial herein as raising equitable issues and as praying for equitable relief, are bound by that construction on appeal. Appellants are bound by the construction they gave the pleadings at the time of the trial. Bank of Moberly v. Meals, 316 Mo. 1158, 294 S.W. 73; Stewart v. Omaha Loan and Inv. Co., 283 Mo. 364, 222 S.W. 808. (3) Appellants, trying this case below on the theory that it was an equitable proceeding, are bound by that theory on appeal. If the pleadings are at law and the case is tried by the parties and the court as one in equity, it will be so treated on appeal. Appellants will not be permitted to change the theory upon which they tried the case below. Maget v. Loan Co., 226 Mo. App. 416, 41 S.W. (2d) 849; Metropolitan Life Ins. Co. v. Erdwins, 229 Mo. App. 432, 83 S.W. (2d) 597; Stripe v. Meffert, 287 Mo. 366, 229 S.W. 762; Overshiner v. Britton, 169 Mo. 341, 69 S.W. 17. (4) A motion for a new trial is as necessary in an equity case as in a law case. Aetna Ins. Co. v. O'Malley, 343 Mo. 1232, 125 S.W. (2d) 1164. (5) By not objecting and excepting to the trial of this case as an action in equity and by not stating that the court erred in determining this as an action in equity in their motion for a new trial, the assignment of error that the court erred in determining this case as an action in equity is a matter of exception and is not before this court for review. Minium v. Solel, 183 S.W. 1037; Mangel v. Leach, 226 S.W. 883; Aultman & Taylor Mach. Co. v. Organ, 129 S.W. 1023, 149 Mo. App. 102; Waters v. Gallemore, 41 S.W. (2d) 870; Coon v. Stanley, 230 Mo. App. 524, 94 S.W. (2d) 96; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W. (2d) 297. (6) For the appellate court to review the assignment of error that the court erred in overruling a motion to strike respondent's amended petition, the alleged error must have been excepted to at the time the motion to strike was overruled and also stated as a ground in appellants' motion for a new trial. Lorts v. Wash, 175 Mo. 487, 75 S.W. 95; Sotham v. Drovers Tel. Co., 239 Mo. 606, 144 S.W. 428; Barrett v. Stoddard Co., 246 Mo. 501, 152 S.W. 43; Rothschild v. Barack. 324 Mo. 1121, 26 S.W. (2d) 760; Equitable Life Assur. Soc. of U.S. v. Natl. Bank of Commerce in St. Louis, 197 S.W. 115; Eime v. Fuchs, 8 S.W. (2d) 824; Syz v. Milk Wagon Drivers' Union, Local 603, 18 S.W. (2d) 441, 323 Mo. 130; Urban v. Nevins, 149 S.W. (2d) 861. (7) The decree appealed from makes specific findings and a general statement in the motion for a new trial and appellants' assignment of error, that the decree is against the law and the evidence in that under all the evidence the decree should have been in favor of the appellants, is insufficient to preserve or present such assignments of error for review. Matthews v. Karnes, 9 S.W. (2d) 628; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W. (2d) 297; Williams v. Jenkins, 326 Mo. 722, 32 S.W. (2d) 580; Colin v. Moldenhauer, 338 Mo. 827, 92 S.W. (2d) 601. (8) The method adopted by respondent is proper. Sec. 3507, R.S. 1939; McCluer v. White, 388 Mo. 1017, 93 S.W. (2d) 696; Littick v. Means, 195 S.W. 729. (9) Under the law and the evidence the trial court's decree is for the proper party. (a) Since the trial court's findings are largely dependent upon the weight of conflicting evidence and the credibility of witnesses, this court should defer to such findings. McKinney v. Hutson, 336 Mo. 867, 81 S.W. (2d) 951; Long v. Von Edrmannsdorff, 111 S.W. (2d) 37; Gehlert v. Smiley, 114 S.W. (2d) 1029; Shaw v. Butler, 78 S.W. (2d) 420; Aude v. Aude, 28 S.W. (2d) 665; Daggs v. McDermott, 327 Mo. 73, 34 S.W. (2d) 46; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W. (2d) 297. (b) The evidence overwhelmingly shows that appellants acquired the Johnson County farm as a result of a series of transfers which divested Henry C. Krienkamp, the judgment debtor, of all his property and that said transfers were made by all the parties thereto with the intent of defrauding the judgment debtor's creditors. First Natl. Bank of Monett v. Vogt, 126 S.W. (2d) 199; Cole v. Cole, 231 Mo. 236, 132 S.W. 741; New England Natl. Bank v. Montgomery, 192 S.W. 941; Lomax & Stanley Bank v. Peacher, 30 S.W. (2d) 44; St. Francis Mill Co. v. Sugg, 206 Mo. 157, 104 S.W. 45; Daggs v. McDermott, 327 Mo. 73, 34 S.W. (2d) 46; Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Matz v. Miami Club Restaurant (Mo. App.), 108 S.W. (2d) 975; Farmer's Bank, etc., v. Handley, 320 Mo. 754, 9 S.W. (2d) 880; Munford v. Sheldon, 320 Mo. 1077, 9 S.W. (2d) 907; Voelpel v. Wuensche, 74 S.W. (2d) 14; 27 C.J., secs. 146, 154, pp. 493, 495; Barber v. Nunn, 275 Mo. 565, 205 S.W. 14; Benne v. Schneko, 100 Mo. 250, 13 S.W. 82; Castorina v. Hermann, 340 Mo. 1026, 104 S.W. (2d) 297; Woodard v. Mastin, 106 Mo. 324, 17 S.W. 308; Friedel v. Bailey, 329 Mo. 22, 44 S.W. (2d) 9; Bank v. Funk, 92 S.W. (2d) 587; Boland v. Ross, 120 Mo. 208, 25 S.W. 524; Natl. Tube Works v. Ring Refrigerating, etc., Co., 118 Mo. 365, 22 S.W. 947; Seger v. Thomas, 107 Mo. 635, 18 S.W. 33; State v. Hope, 102 Mo. 410, 14 S.W. 33; Haydon v. Alkire Grocery Co., 88 Mo. App. 241; Webb City Lbr. Co. v. Victor Min. Co., 78 Mo. App. 676; Ball v. O'Neil, 64 Mo. App. 388; Snyder v. Free, 21 S.W. 847, 114 Mo. 360; Obernien v. Tressler, 19 Mo. App. 519; Commercial Bank v. Kuehner, 135 Mo. App. 63, 115 S.W. 510; Jones v. Hogan, 116 S.W. 21, 135 Mo. App. 34.

DOUGLAS, P.J.

This is a suit in equity by a judgment creditor to set aside fraudulent conveyances of a farm in Johnson County.

In 1920 Henry Krienkamp borrowed $1,000 from plaintiff and gave his promissory note for that amount. He made interest payments on the note through 1929. In 1927 Krienkamp acquired the 109-acre farm described in the petition. In August, 1930 he conveyed the farm to C.W. Green, his son-in-law, for a stated consideration of $1. On the same date and for the same consideration Green conveyed the same farm to Emma Krienkamp, wife of Henry Krienkamp. In November, 1931 Emma Krienkamp conveyed the farm to her son-in-law, C.W. Green, for a stated consideration of $9,000. The next day Green conveyed the farm for a stated consideration of $1, through a straw party, to Minnie Green, his wife, and to Flora Lenz jointly. Minnie Green and Flora Lenz, defendants, are daughters of Henry and Emma Krienkamp. In 1935 the Krienkamps moved on the farm and are living there as tenants of their daughters. In August, 1939 plaintiff learned of Krienkamp's conveyance of the farm. He recovered judgment on his note in October, 1939. The farm was sold under execution on the judgment and plaintiff bought it. Thereupon he filed this suit.

[1] Plaintiff's original petition was to quiet title and for ejectment. Defendants' answer denied any title in plaintiff and asserted their own title. In this state of the pleadings the case went to trial to the court without...