Ulrich v. Pierce

• Decision Date: 23 July 1921
• Docket Number: Mo. 22179.
• Citation: 233 S.W. 401
• Parties: ULRICH v. PIERCE
• Court: Missouri Supreme Court

233 S.W. 401

ULRICH v. PIERCE

Mo. 22179.

Supreme Court of Missouri, Division No. 1.

July 23, 1921.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

Action by A. D. Ulrich against Elmer Pierce. From judgment for defendant, plaintiff appeals. Judgment reversed, and cause remanded for proceedings in accordance with the opinion.

William T. Keil, of St. Louis, and Jesse M. Owen, of Union, for appellant.

William L. Cole and John W. Booth, both of Union, and James Booth, of Pacific, for respondent.

BROWN, C.

Petition filed in said court June 23, 1919, returnable to the August term. It contains two counts: (1) Ejectment to recover the southwest quarter of the southwest quarter of section 10, township 41 north, of range 1 west, containing 40 acres; (2) a statutory action to try title to the same land. The amended answer on which the cause was tried, after a general denial, pleads, in substance, that on the 21st day of September, 1916, in an action for cutting corn before maturity, one William J. Vaughn recovered judgment before F. A. Murphy, a justice of the peace for Central township, in said Franklin county, against Ivan C. Robinson for $50, with costs, and that afterward, on the 30th day of January, 1918, a duly certified copy of the record of said judgment was filed in the office of the circuit court within and for said county of Franklin, and afterward the sheriff of Franklin county, by virtue of a writ of execution issued out of said court on said judgment February 7, 1918, levied upon said premises as the land of said Robinson, and during the March term of said court and on the 11th day of March, 1919, sold the same to satisfy said judgment, and on the same day executed and delivered to defendant his deed therefor; that said Robinson acquired said land on January 18, 1909, by deed duly recorded, and on the 7th day of March, 1918, there was filed for record in the recorder's office of said county a deed purporting to be a deed of conveyance in fee by said Robinson and wife to plaintiff; that plaintiff claims title to said lands under said deed, which plaintiff avers was made by said Robinson with intent to cover up and conceal his title to said premises and thereby secure to himself credit of a financial character in his future dealing and thereby defraud his creditors both present and future, and the same was and is fraudulent and void as against said Vaughn as creditor and defendant as purchaser; that defendant accepted said conveyance with complete knowledge and notice of the matter so pleaded.

He further says that this deed and record thereof constitutes a cloud on defendant's title, and asks the court by its judgment to remove the same and to decree title in himself or in defendant. He also pleads that from said 12th day of July, 1916, until the 7th day of March, 1918, plaintiff withheld said deed from record, and suffered said Robinson to possess said premises and deal with same as his own, and that the cause of action upon which the Vaughn judgment was founded grew out of dealing between said Robinson and said Vaughn in respect of said premises and were without notice on the part of Vaughn of the deed to plaintiff or of right or interest of the plaintiff in or to the premises, and that said Vaughn never had or Possessed or was chargeable with any other notice of said conveyance to plaintiff than the technical constructive notice which the law implies to him from the time of the filing of said deed for record. Wherefore it says plaintiff is estopped, by reason of matters and things aforesaid, as against this defendant's title to the premises, or any part thereof, and in equity plaintiff is entitled to a decree by reason of said matters establishing said title.

At the trial it appeared that at the time of the execution of the deed which defendant is attacking as fraudulent Ivan O. Robinson had owned the land in question nine years, having acquired it and moved upon it with his family in 1907, obtaining his deed therefor in 1909, and conveying to plaintiff, his sister, on July 12, 1916. Since 1912 he had resided on it with his family, consisting of his wife and one child, with some intervals, and at the time of said conveyance his parents were living there with him. Mrs. Ulrich, the plaintiff, lived with her husband in St. Louis, and had property received from the estate of a former husband. She testified, in substance, that their parents lived with him; that they both together supported them; and that at the time of the execution of this conveyance he owed her $800 upon notes which she surrendered to him in the office of Mr. Schuler, the justice of the peace in St. Louis who prepared the deed, at the time it was made, and also gave him $600, which was inserted as the consideration. We find no evidence that she concealed the ownership of this property in any other way than by carelessness with respect to the recording of her deed. In that connection Mr. Reed, one of defendant's witnesses, who cultivated the land or a portion of it in 1917, testified that he paid rental to Mrs. Ulrich and that she then told him she owned the farm. Judge Schuler testified that he saw the money, $600, paid by Mrs. Ulrich to her brother Ivan at the time the deed was executed in his office, and saw notes given to him by her.

There is no evidence which we can find in this record that Ivan owed a dollar to any one but his sister at the time the deed was made. At the time of the recovery of this judgment Vaughn was a tenant of Ivan on this same land, which he had planted in corn which was, in September after the execution of the deed, in different stages of development. Vaughn cultivated it for crop rent, that is to say, one-third of the crop. Ivan desired to save the feed, or his share of it, in good condition for his stock, that is to say, he wanted it green enough for that purpose, and as the different patches matured he hurried Vaughn to cut it, writing him letters stating his position. The last patch that ripened Vaughn refused to cut as requested by Robinson, who cut it himself, in September, at least two months after the conveyance to Mrs. Ulrich. This appeared to make bad blood, with the result that Vaughn sued and recovered a judgment for $50. This judgment, recovered upon a transaction which originated two months after the execution of the deed, constitutes the only foundation for the charge of fraud laid in defendant's answer. The charge implies that, being about to get in this petty quarrel, he conveyed his land. It was stipulated at the trial that the only issues contested were the issue of estoppel and the issue of fraud.

The evidence will be referred to in the opinion as necessary.

1. It is proper to say at the outset that there is no evidence in this case that Ivan C. Robinson, the party charged with executing the deed in question for the purpose and with the intent to defraud his creditors, ever owed any other person than plaintiff, his sister, and Vaughn, under whose judgment for $50 the land was sold to the defendant. Nor is there any evidence that he ever intended to become otherwise indebted. It is, moreover, conclusively shown by the defendant that the matter out of which the Vaughn judgment grew, namely, a difference as to the time at which the corn raised by Vaughn as crop renter on this same land should be cut, did not arise until two months after the execution of this deed. Under these circumstances he had the perfect right to convey the land to plaintiff when he did, on such terms as he should choose. It was his to give as well as to sell. Having parted with it by deed, he could not take it back.

It is upon these circumstances that fraud must be brought home to the plaintiff to defeat her recovery. This cannot be done by mere inference, but must be proved; and if the facts shown are equally consistent with an honest purpose, fraud will not be inferred. Dallam v. Renshaw, 26 Mo. 533, 544; Henderson v. Henderson, 55 Mo. 534; Garesche v. MacDonald, 103 Mo. 1, 15 S. W. 379; Ryan v. Young, 79 Mo. 30; Ames v. Gilmore, 59 Mo. 537. Perhaps this principle has not been better nor more conservatively expressed than in the following language of Judge Brace in Garesche v. MacDonald, supra:

"While fraud may be inferred when it is a legitimate deduction from all the facts and circumstances in evidence in a given case it is never to be presumed, and when a transaction under consideration may as well consist with honest and fair dealing as with a fraudulent purpose, it is to be referred to the better motive."

This has been frequently repeated by this and other courts. It is equally reasonable and well settled by authority that to impeach a sale for fraud plaintiff must show that the purpose of the sale was to defraud and cheat creditors, and that defendant participated in the...