Star v. Penfield

• Decision Date: 17 June 1912
• Parties: STAR v. PENFIELD et al.
• Court: Missouri Court of Appeals

148 S.W. 382

166 Mo. App. 302

STAR v. PENFIELD et al.

Kansas City Court of Appeals. Missouri.

June 17, 1912.

FRAUDULENT CONVEYANCES (§§ 271, 272)— VOLUNTARY CONVEYANCE — SOLVENCY OF GRANTOR — PRESUMPTIONS — BURDEN OF PROOF.

A voluntary conveyance is presumptively fraudulent as against existing creditors of the donor, and the burden is on the donee to repel such presumption; and the court, in a suit to subject corporate stock of a wife to the payment of a judgment against her husband, may not deny relief because plaintiff fails to show the insolvency of the husband at the time of the voluntary transfer of the stock to her, though he assumed to a certain extent the burden of showing insolvency; but the burden of showing solvency, to rebut the presumption of fraud, is on the wife.

Appeal from Circuit Court, Buchanan County; L. J. Eastin, Judge.

Action by Mary E. Star against Arthur H. Penfield and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

W. K. James, of St. Joseph, for appellant. C. C. Crow, of St. Joseph, for respondents.

BROADDUS, P. J.

This is a suit in equity to subject 49 shares of stock of the Merchants' Improvement & Investment Company, belonging to Anna A. Penfield, the wife, to the payment of plaintiff's judgment against her husband, Arthur H. Penfield.

The petition alleges that on the 5th day of May, 1903, she loaned to the defendant Arthur $4,000, for which he executed to her his promissory note, which was surrendered to him on the 5th day of November, 1906, and a new note taken for said sum, with accrued interest; that at the January term of the Buchanan county circuit court for the year 1909 she obtained judgment on said note and interest in the sum of $4,466.67, together with the cost of the suit, on which judgment she sued out an execution directed to the sheriff of said county, and a further execution issued to the sheriff of Jackson county, each of which was returned not satisfied; and no part of said judgment has been paid, as the said Arthur has no property out of which any part of the same can be realized by law. The petition further alleges that, at the time said loan was made to the said Arthur, he and the defendant Anna A. were husband and wife; that at the time of said loan the said Arthur was insolvent, and has so continued up to this time; that at the time she loaned the said sum of money to the said Arthur, his wife, Anna, was the owner of 49 out of 100 shares of stock in a corporation known as the Merchants' Improvement & Investment Company; and that with the fraudulent intent to defraud plaintiff the said Arthur invested the said $4,000 borrowed from her as aforesaid in the property of his wife owned in said company, he being at the time insolvent as aforesaid. There are other allegations in the petition, which for the purposes of the main point of the controversy, and the one on which the court made its finding, are not necessary to be set out...