Produce Exchange Bank of Kansas City v. Winn

• Decision Date: 22 November 1939
• Docket Number: 36311
• Parties: Produce Exchange Bank of Kansas City, a Corporation, and Peoples Bank of North Kansas City, a Corporation, by R.W. Holt, Commissioner of Finance of the State in Charge of the Liquidation Thereof, v. Frank D. Winn, Mary E. Winn, and Frank D. Winn, Trustee, George W. Osborne, Trustee, and Janet O. Winn, Trustee, as Liquidating Trustees of the Winnwood Development Company, a Corporation, Defendants, Mary E. Winn, Appellant
• Court: Missouri Supreme Court

133 S.W.2d 419

345 Mo. 420

Produce Exchange Bank of Kansas City, a Corporation, and Peoples Bank of North Kansas City, a Corporation, by R.W. Holt, Commissioner of Finance of the State in Charge of the Liquidation Thereof, v. Frank D. Winn, Mary E. Winn, and Frank D. Winn, Trustee, George W. Osborne, Trustee, and Janet O. Winn, Trustee, as Liquidating Trustees of the Winnwood Development Company, a Corporation, Defendants, Mary E. Winn, Appellant

No. 36311

Supreme Court of Missouri

November 22, 1939

Appeal from Lafayette Circuit Court; Hon. Charles Lyons Judge.

Appeal dismissed.

Lawson & Hale and Maurice H. Winger for appellant Winger, Reeder & Barker of counsel.

Respondent has filed a motion to dismiss this appeal on the ground that appellant's brief does not comply with the requirements of Rule 15 of this court, in that it does not contain a fair statement of the facts nor proper and sufficient assignments of error, and points and authorities. Returning our attention first to the question whether the statement is sufficient the worst that can be said of appellant's statement is that it is short and perhaps slightly incomplete.

Frank G. Harris, Lakenan M. Price, Ralph L. Alexander and Frank G. Harris, Jr., for Peoples Bank of North Kansas City; Harris, Price & Alexander of counsel.

(1) The chancellor held that the claimed items of indebtedness were not proven; since he observed the witnesses, his findings should not be disturbed. Castorina v. Herrmann, 340 Mo. 1026. (2) Knowledge of and participation in a plan to defraud creditors, vitiates a transfer, even if for value. Bank v. Handley, 320 Mo. 754; Bank v Jones, 338 Mo. 1057; McClure v. White, 338 Mo. 1017; Barber v. Sheldon, 275 Mo. 16; Hurtz v. Troll, 175 Mo. 506.

Ike Skelton, Glenn R. Donaldson, Joseph Koralchik, Daniel L. Brenner and Phineas Rosenberg for Produce Exchange Bank of Kansas City; Rosenberg & Brenner of counsel.

The statement of the case furnished by appellant, violates Rule 15 of this court in failing to comply with the requirement of fairness. The facts as therein stated only present appellant's version of the questioned transactions, and only appellant's evidence, and totally ignore respondents' evidence and theories concerning same. The statement is made at pages 3 and 4 of said brief that Frank D. Winn, a non-appealing defendant, borrowed certain moneys from his mother to be used in the development of the park. This positive statement assumes one of the controversial issues of the case, and fails to contain even the qualification that respondents denied this, nor does it anywhere mention respondents' evidence that the money was not loaned but invested in stock and bonds in a corporation organized to install and operate a part concession. Appellant's statement fails to present respondents' theories and evidence and as a direct result thereof, it does not furnish this court with any basis for ascertaining the issues before it on this appeal and requires resort to the record of 548 pages to discover them. This court could never discover from an examination of appellant's statement what evidence the trial court had before it which would even remotely justify a ruling in favor of respondents. It wholly fails to set forth the facts which constitute the crux of this case.

Bohling, C. Cooley and Westhues, CC., concur.

OPINION

BOHLING

This, broadly put, is an action by creditors to set aside transfers of real estate. It was instituted by Produce Exchange Bank of Kansas City, a corporation (herein sometimes designated plaintiff), on September 17, 1937, against Mary E. Winn (appellant here) and Frank D. Winn, and Frank D. Winn, Trustee, George W. Osborne, Trustee, and Janet O. Winn, Trustee, as liquidating trustees of the Winnwood Development Company, a corporation. The venue was changed from Clay to Lafayette County. On March 18, 1938, Peoples Bank of North Kansas City, through the Commissioner of Finance (herein sometimes designated intervenor), leave having been obtained, filed its intervening petition. The decree below was for plaintiff and intervenor. Mary E. Winn, grantee, prosecutes this appeal. The principal events leading to her acquisition of title may be outlined as follows:

Frank Winn, in 1911 and 1912, acquired what is known in the record as the Winnwood Beach property, consisting of one hundred sixty-seven acres of land, in Clay county, Missouri. He, thereafter, formed a corporation known as the Winnwood Development Company of which he had full charge and was the owner, transferred the property to said corporation, developed the property into a pleasure resort and an amusement park around lakes situate thereon, and platted a part of the property into lots.

Arrangements were made for the construction of the amusement park for the 1928 park season. November 15, 1927, $ 45,000 was borrowed, secured by a deed of trust on the property, from Edward Aaron and was used in making improvements, additions, and the construction of the amusement park. In said construction an additional indebtedness of $ 50,000 due the Thompson Lumber Company, or A. O. Thompson, was incurred and secured by a second deed of trust on the property. Lot 26 of Block 4, of said property, was not covered by said deeds of trust.

A corporation, Winnwood Amusement Company, was organized to operate the park and leased the property from the Winnwood Development Company. The Amusement company let concession rights to concessionaires; and was responsible for the lights and boardwalk of the park.

Frank Winn's father left no will. He was survived by Geraldine C. Winn, his widow, and his children Mary E., James C. and Frank D. Frank Winn received his share of the inheritance, approximately one-third.

It appears that the installation of roller coaster facilities was insisted upon by the concessionaires. The Winnwood Roller Coaster Company was organized with a capital stock of $ 35,000. Geraldine C. Winn borrowed $ 5000 from intervenor bank in the spring of 1928 and purchased $ 5000 in stock or stock and bonds of the roller coaster enterprise.

During the 1931 park season unpaid light bills totaling $ 1,660, due the Kansas City Power and Light Company, accumulated; and Geraldine C. Winn signed a note or notes evidencing said indebtedness.

Geraldine C. Winn died May 11, 1932. She bequeathed $ 1.00 to her son Frank; and after requesting the payment of certain specific legacies, devised and bequeathed the residue of her estate to her daughter, Mary Winn, and son James Winn, "share and share alike," with the proviso that neither of said residuary beneficiaries dispose of the "joint property, either by sale, mortgage, gift or in any other like manner, unless both parties agree, by a written contract . . ."

The Kansas City, Clay County and St. Joseph Railway Company's right of way traversed the property. This interurban railway ceased operation and the right of way reverted to the Winnwood Development Company. In consideration of the Development company dedicating the right of way for road purposes, certain outlying lands, approximately thirty acres, described as "swamp lands and frog ponds," covered by the Aaron and Thompson deeds of trust were released from said deeds of trust.

On December 13, 1934, the Winnwood Development Company conveyed, by warranty deed, Lot 26 of Block 4, aforesaid, to Mary Winn for the recited consideration of $ 1 and other considerations; and in a separate deed of the same date, for a like recited consideration, conveyed said outlying "swamp lands and frog ponds" to Mary Winn.

The "operating companies" owed Frank Winn back salary (amount not recalled by Mr. Winn) and he acquired some bathing suits and towels from the Amusement company. Mr. Aaron, in the spring of 1935, started to foreclose his deed of trust. Upon certain creditors threatening receivership, it was deemed advisable to operate the property for the 1935 park season, foreclosure was stopped, and in consideration, among other things, of an extension of the time for payment of the Aaron indebtedness to October 1st, the Development company executed a surrender of possession to Mr. Aaron. Mr. Aaron and Mr. Thompson organized a corporation, which leased the property from Mr. Aaron and operated the park during the 1935 season. In December, 1934, Frank Winn also had transferred to Mary Winn the bathing suits and towels, aforesaid, valued by Mr. Winn at $ 2,500. Mr. Aaron contracted with Mary Winn that for the use of "said personal property" for the 1935 season, she, in the event he foreclosed, should have the option of receiving from him a conveyance of approximately thirty-five acres of additional outlying "swamp lands and frog ponds" or the sum of $ 1500. Foreclosure was had in December, 1935, and, at the direction of Mr. Aaron, title was taken in the name of A. L. Taylor, who subsequently transferred title to the A. K. B. Realty Company, a corporation owned and controlled by Mr. Aaron's family. Appellant's brief states that Mr. Aaron, pursuant to appellant's election conveyed said additional "swamp lands and frog ponds" to appellant; and the record discloses that the A. K. B. Realty Company, on January 31, 1936, conveyed described parts of the park to appellant for the recited consideration of $ 1 and other considerations. Frank Winn testified the consideration supporting this transfer was the bathing equipment.

Appellant's brief states that appellant purchased from Mr. Aaron, for $ 30,000, the property he acquired under the foreclosure proceedings. The record discloses a deed dated "June 1, 1936," conveying "the park proper from A. K. B. Realty Company to Mary Winn;" and that certain personal property also passed from the Realty company to her. No cash changed hands in this...