Saxbury v. Coons

• Decision Date: 23 April 1936
• Docket Number: No. 33352.,33352.
• Citation: 98 S.W.2d 662
• Court: Missouri Supreme Court
• Parties: SAXBURY v. COONS et al.

98 S.W.2d 662

SAXBURY v. COONS et al.

No. 33352.

Supreme Court of Missouri, Division No. 1.

April 23, 1936.

Rehearing Overruled November 12, 1936.

Appeal from Circuit Court, Schuyler County; Walter A. Higbee, Judge.

Suit by H. M. Saxbury, trustee in bankruptcy of the Estate of Olaf F. Coons, bankrupt, against Olaf F. Coons and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Ed M. Jayne, of Kirksville, E. E. Fogle, of Lancaster, and Allen Rolston, of Queen City, for appellant.

Roland A. Zeigel and S. H. Ellison, both of Kirksville, for respondents.

HAYS, Judge.

Olaf F. Coons was adjudged a bankrupt in October, 1931. This suit was filed in December of the same year against said bankrupt, his wife, Maude, and his mother, Ida B. Coons, by the trustee of his bankrupt estate to try, ascertain and determine title to certain real estate situate in Schuyler county.

From February 1, 1889, and down to his death, Elmer S. Coons, father of Olaf and husband of Ida, owned the northeast quarter of section 36, in township 65, range 15. During all that period Olaf was in possession and lived upon the south half of that quarter section under an arrangement between the father and son that the latter was to become the owner thereof on the death of the former, who died intestate on the ____ day of ____, 1929, leaving him surviving the said Ida B., his widow, Olaf, and a daughter, Ava McElhinney, as his only heirs.

Olaf and Mrs. McElhinney and her husband conveyed said quarter section to the mother for the recited consideration "of the sum of love and affection the support of Ida B. Coons $5.00 to them paid by the party of the second part" by deed duly acknowledged and recorded on November 8, 1929.

The petition alleged the facts above stated and also in substance the following: The conveyance last mentioned was made with the agreement and understanding that the north half of the quarter section would either be conveyed to Ava McElhinney or order, and the south half would either be conveyed to said Olaf or held in trust for him by said Ida for the purpose of aiding him in defeating and defrauding his creditors — one or the other of such purposes, plaintiff did not know which; that, at the time of the death of Elmer S. Coons and long prior thereto, Olaf was indebted to the Bank of Queen City in three sums, to wit: $2,400; $3,000; $900; to the Bank of Keokuk $3,200; to Mrs. Nova Johnson $612; Eli Johnson $1,635, all of which were valid and existing claims against the bankrupt's estate; and that at all times mentioned Olaf was insolvent. The specific prayer was that said deed be set aside as to the south half of the land; that plaintiff trustee be adjudged to be the owner thereof for the purpose of liquidating and settling the bankrupt's estate.

The defendants answered jointly by general denial and they specifically pleaded adverse possession by Olaf and his wife of the land in suit for more than ten years prior to the death of Elmer S. Coons, that they made valuable and permanent improvements thereon and resided and paid the taxes thereon, and that said lands were the homestead of the said Olaf from the date of his taking possession of the same.

The answer admitted the execution and delivery of the deed and pleaded that Olaf was solvent and was, exclusive of this 80-acre tract, the owner of real and personal property in excess of the aggregate of his debts; that at the time the deed was executed the indebtedness to the Queen City bank had not been created; that prior to the creation thereof the bank had full knowledge of the existence and delivery of the deed; the prayer is for the discharge of the defendants and for general relief.

By reply the plaintiff admitted that Olaf became the owner of the south half of the quarter section and that at said time it became and was the homestead of Olaf, and alleged that at the time he was adjudged a bankrupt said tract was and now is of a value in excess of $3,000; that the wife Maude did not join in the execution of the deed and therefore the deed was wholly void and invalid to convey any interest to the grantee. All other allegations of new matter were denied generally.

On the trial it was admitted by the parties that "Olaf and Maude had been husband and wife for more than 20 years; that Olaf was adjudged a bankrupt and plaintiff qualified as trustee of the bankrupt estate and was acting in that capacity, and that the Bank of Queen City made proof of a claim against Olaf on account of a note bearing 6½ per cent. interest in the amount of $2,300; that Elmer S. Coons died October 23, 1929," leaving as his only heirs his widow, son, and daughter above mentioned. The deed in controversy was introduced in evidence together with the certificates of acknowledgment and recordation indorsed thereon. Also the schedules of assets and liability of the bankrupt as filed in the district court. The schedules show that the debts to the banks, as shown above, were secured by deeds of trust on real estate other than the land in suit; that the two individual debts had been paid; and further show that the bankrupt's liabilities exceed his assets. The land in suit was not listed.

It is to be noted that no dates whatever were shown in the pleadings, in the admitted facts, or in said schedules, save as shown hereinabove.

The decree rendered January 1, 1933, was in substance as follows: There was no fraud in the execution of the deed in controversy but the same was void as to the homestead of Olaf F. Coons. The court approved the report of commissioners admeasuring and setting off homestead to Olaf F. Coons out of the land in controversy, such homestead (described by metes and bounds) as set off was the east 50...