Spratt v. Early

• Decision Date: 27 May 1902
• Citation: 169 Mo. 357,69 S.W. 13
• Court: Missouri Supreme Court
• Parties: SPRATT v. EARLY et al.<SMALL><SUP>1</SUP></SMALL>

69 S.W. 13

169 Mo. 357

SPRATT v. EARLY et al.¹

Supreme Court of Missouri, Division No. 2.

May 27, 1902.

HOMESTEAD — ACQUIREMENT BY DESCENT — EFFECT — FORFEITURE — FRAUDULENT CONVEYANCE — APPEAL — COSTS.

1. Evidence examined, and held to sufficiently show that property deeded to a son, and thereafter deeded by him to his mother, and later reconveyed by the latter to the son, in fact belonged to the mother all the time, the last conveyance by her to the son being made with an intent to put the property out of the reach of the mother's creditors.

2. Under Rev. St. 1879, § 2695, after its amendment by Laws 1887, p. 198, providing that homesteads thereafter acquired or those then held by descent or devise should not be subject to attachment or execution on any liability thereafter created, property then occupied as a home by one who inherited it from her mother, was exempt from claims for debts thereafter contracted.

3. A widow occupying a homestead with her children, and continuing to occupy it with her second husband after her remarriage, does not by such second marriage forfeit her homestead right.

4. The owner of a homestead, who rents it temporarily and occupies a rented house elsewhere, does not thereby forfeit his homestead right.

5. Where the owner of a homestead sold it and invested the proceeds in a new homestead, which he occupied until he conveyed it to another, such last conveyance was not fraudulent as to his creditors, though made without consideration.

6. Where an appellant fails to make a proper abstract and statement of the case as required by the rules of the court, he should be required to pay the costs, though successful on the appeal.

Appeal from circuit court, Buchanan county; W. K. James, Judge.

Action by William E. Spratt against Daniel H. Early and others. From a judgment for plaintiff, defendant Early appeals. Reversed.

M. G. & J. Moran, for appellant. John F. Tyler, John A. Connett, and Jo. F. Woodson, for respondent.

GANTT, J.

On the 18th of October, 1899, the plaintiff instituted this suit in equity to set aside a deed from Daniel H. Duffy and wife to their codefendant Daniel H. Early, and to subject the lot of land described in said deed to the lien of a judgment obtained by plaintiff against said Daniel H. and Elizabeth Duffy, his wife, in the circuit court of Buchanan county, at the September term, 1898, of said court. The plaintiff alleges that he obtained said judgment on a note executed by Daniel and Elizabeth Duffy on the 16th day of April, 1894, for $695.53, to one John Vahey, which, for value received, said Vahey assigned to plaintiff. He further alleges that on the 8th day of September, 1898, the defendants Daniel and Elizabeth Duffy were the owners in fee simple of lot 9, block 28, in Patee's addition to the city of St. Joseph, and on said date, with the intent to cheat, defraud, hinder, and delay their creditors, and without any consideration whatever, executed and delivered to said Daniel H. Early, their codefendant, a general warranty deed, by which they purported to convey to said Daniel H. Early said above-described lot or parcel of land; that said Daniel Duffy and wife are insolvent, and have no other property out of which said judgment can be enforced. Daniel H. Early filed a separate answer, which, omitting caption, is in these words: "Comes now Daniel H. Early, one of the above-named defendants, and, for his separate answer to plaintiff's first amended petition, says that he denies each and every allegation therein contained. For further answer, defendant Daniel H. Early says that on the 29th day of August, 1895, he purchased from the plaintiff, the said William E. Spratt, the property described in plaintiff's amended petition, and paid him two thousand five hundred dollars therefor; that he thereafter continued to own said property until the 3d day of January, 1896, when he sold and transferred said property to Elizabeth Duffy in consideration of two thousand five hundred dollars, to be paid to him by the said Elizabeth Duffy in the future from that date, and that, in the event of the said Elizabeth Duffy failing to pay him said sum of two thousand five hundred dollars, the purchase price of said property, then she was to reconvey said property back to him, the said Early; that pursuant to this agreement the said Elizabeth Duffy continued to own the naked legal title in and to said property until the 8th day of September, 1898, when, being unable to pay any part of the purchase price, she reconveyed the property back to said Daniel H. Early under and pursuant to the agreement aforesaid; that said Elizabeth Duffy never paid any part of the purchase price, and that, at the time she transferred said property back to said Daniel H. Early, she had no interest or title in or to said property other than the naked legal title; and that said property at no time was subject to any indebtedness of the said Elizabeth Duffy that was in existence on said January 3, 1896, the date said Daniel H. Early conveyed said property to her under the agreement aforesaid. Having fully answered, said defendant Daniel H. Early prays to be discharged, with his costs in this behalf expended." Daniel H. Duffy and Elizabeth Duffy filed their separate answer in said cause, which said answer is in words and figures as follows: "Now at this day come the above-named Daniel H. Duffy and Elizabeth Duffy, and for their separate answer say that they deny each and every allegation in plaintiff's amended petition contained. Having fully answered, they pray to be dismissed from this action." Plaintiff filed a reply to separate answer of Daniel H. Early, denying generally the new matter alleged therein. The cause was tried at the January term, 1899, and a decree rendered for plaintiff, — that said conveyance from Elizabeth Duffy and D. H. Duffy, of date September 8, 1898, to Daniel H. Early, of lot 9 in block 28 in Patee's addition to the city of St. Joseph, was null, void, and of no effect; that said judgment was a lien thereon, and gave defendants 30 days in which to pay the same, and, in case of their failure to pay it in that time, the sheriff should sell the same, as in case of sales under execution, to satisfy said judgment and costs. At the request of defendants, the court made a special finding of facts, and his conclusions of law thereon, to which defendants excepted at the proper time. It is deemed unnecessary to set out the findings in full. Plaintiff called each of the defendants as witnesses, and their testimony constitutes the bulk of the evidence.

The evidence has been very well abstracted on the part of plaintiff. On part of defendants the abstract falls far short of the requirements of our rules, and for that reason the cost of it has been adjudged against defendants.

We glean the following facts from the record: On or about April 16, 1894, John Vahey, as surety for defendant Daniel Duffy, paid a note to the Saxton Bank, in St. Joseph, for $500. Thereafter Daniel Duffy and Elizabeth Duffy, his wife, executed and delivered to said Vahey their promissory note for said $500 and interest. This note Vahey assigned to Wm. E. Spratt, the plaintiff, who brought suit on it in the circuit court of Buchanan county, and obtained service on said Duffys a few days prior to September 8, 1898, and obtained judgment against them thereon on October 11, 1898. Defendant Daniel H. Early is a son of his codefendant Mrs. Elizabeth Duffy, and a stepson of Daniel Duffy. He was known as Harry J. Early, and as such did business and kept his bank account. He testifies he was baptized and confirmed in the Catholic church by the name of Harry J. Early, and never knew until the deed from plaintiff, Spratt, was about to be made to him, that his name was Daniel H. Early, when his mother told him his true name was Daniel H., instead of Harry J., and the deed was made accordingly at his suggestion. He was 29 years of age when the trial took place, in January and February, 1899. He lived in his mother's family as a member thereof, as well after her marriage to Mr. Duffy as prior thereto, until June, 1897, when he married, and ceased to live with her, and made his home with his wife's mother. He testified that he began to work for wages when he was about 15 years old at a salary of $20 a month. In 1890 he was employed by the Grand Island Railroad Company at $50 a month. In 1891 it was increased to $60 a month. It was increased to $65 in four or five months, and then to $75, and at the time of the trial it was $100 a month. He testified that up to the time he was of age, in March, 1891, he gave his mother $12.50, or even $40, a month, out of his wages. He also testified that he had a verbal understanding with his mother that she was to pay him back in cash at her convenience, and, failing to do so, she was to convey him the homestead, the property on Tenth street, or the Dawson property, which property Mrs. Duffy owned from 1872 to 1895 by inheritance from her mother, Mrs. Carr, and which she had occupied as her homestead for 22 years. In 1894 she, with all the family, left said Dawson or homestead property, and moved out into the country temporarily; but she and her husband and son testified that the town or Dawson property still remained her homestead, that she never abandoned it as such, and that they only went to the Henshaw or country place for a little recreation. They leased it for one year, but the house burned down before the end of the year, and they returned to St. Joseph in a few months, to some property which they rented. They rented the homestead to O'Connor by the month. He kept it a few months, and she then rented it to Dawson until August 24, 1895, when she sold it to him for $2,900, of which $1,700 was cash, and the balance, $1,200, was secured by deed of trust on the property. Of the $1,700 thus received, she turned over to her son, Early, $1,000, as soon as she received it; and a few...