Vandeventer v. Goss

• Decision Date: 30 January 1906
• Citation: 116 Mo. App. 316,91 S.W. 958
• Parties: VANDEVENTER v. GOSS (GOSS, Garnishee).
• Court: Missouri Court of Appeals

91 S.W. 958

116 Mo. App. 316

VANDEVENTER v. GOSS (GOSS, Garnishee).

St. Louis Court of Appeals. Missouri.

January 30, 1906.

1. FRAUDULENT CONVEYANCES — CONSIDERATION OF CONVEYANCES—DEBTS.

Under the law in force in 1869, a husband was entitled to the rents and profits of his wife's land, not settled to her sole use, although the rents were not subject to his debts, and a man who married at that time did not, by collecting the rents and profits of his wife's land, become indebted to her in such sense as to sustain a conveyance made by him to her to the detriment of his creditors.

2. SAME—VOLUNTARY CONVEYANCES— PRESUMPTIONS—INDEBTEDNESS OF GRANTOR.

The fact that a grantor in a voluntary conveyance is indebted is presumptive evidence that the conveyance is fraudulent and throws on the grantee the burden of establishing its validity.

3. SAME—PROVISION FOR FAMILY—TEST OF VALIDITY.

Where a man has large assets, he may make a reasonable provision out of his substance for a wife or child, although he is indebted in a small amount, if he does so in good faith and with no intention to hinder his creditors, and the transfer does not operate to hinder or delay them; the criteria in such cases being the aggregate value of the grantor's assets as compared with his debts, and his intention in making the conveyance.

4. SAME—SOLVENCY OF GRANTOR.

Only clear solvency in the sense of adequacy of assets, if sold under execution, to satisfy debts, will uphold a voluntary conveyance as against pre-existing debts.

5. SAME—SUFFICIENCY OF EVIDENCE.

Evidence held to show that a husband at the time he transferred a stock of goods to his wife was insolvent, so that the transfer, being voluntary, could not be sustained as against existing creditors of the husband.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by John W. Vandeventer against John P. Goss, with Emma C. Goss as garnishee. From a judgment for plaintiff, the garnishee appeals. Affirmed.

The appeal in this case was taken from a judgment for $1,597.02 against Emma C. Goss, who was summoned as garnishee on an execution issued on a judgment for $5,073.94 against her husband, John P. Goss, the defendant, and in favor of the plaintiff, who is her brother. The latter judgment was rendered May 2, 1902, and executions had been issued on it and returned unsatisfied prior to the judgment against the garnishee. The litigation between the principal parties, Vandeventer and Goss, arose out of a partnership which existed between these men under the firm name of Goss & Vandeventer. Said parties were engaged in farming, stock raising, and merchandising in the town of Florida, Monroe county, and its vicinity for 21 years. The partnership ceased business in 1893, at which time the firm owned a stock of merchandise in Florida, some town lots therein, and about 1,200 acres of land in the county. When they divided their assets, Goss acquired the merchandise and town lots and about 600 acres of the land. Goss continued in the mercantile, farming, and stock-raising businesses for several years after the lapse of the partnership. In 1895 or 1896, Vandeventer instituted a suit for a dissolution of the partnership and an accounting, alleging that, on an accurate statement of the firm's affairs, the defendant Goss would be found to owe him $25,000. This equity suit was not finally disposed of until 1902, in which year, as stated above, Vandeventer obtained judgment for more than $5,000. It will be observed that the suit was pending in the circuit court of Monroe county for about six years, and meanwhile Goss was conducting his mercantile and farming operations. It was shown by the testimony of Harry M. Goss, son of the defendant, and the garnishee, that the firm of H. M. Goss & Co. purchased all the merchandise and fixtures contained in the store of John P. Goss for $2,396; that the firm was composed of Harry M. Goss and his mother, Emma C. Goss, and that by the terms of the purchase, he acquired one-third of the mercantile assets and his mother two-thirds; that he paid his father $800 in cash for the one-third interest. Said witness did not testify what his mother paid for her two-thirds, nor was there any direct evidence on this question. Mrs. Goss alleges in her answer that her husband owed her $2,400 at the time of the purchase and that she gave him credit on this indebtedness for $1,597.02 in payment for her two-thirds interest in the goods and fixtures, but neither she nor any one else gave testimony to support those allegations. The nature of the indebtedness she claimed to hold against her husband bears on the decision of the points raised on the appeal, and will be disclosed in the course of our statement. The testimony shows that for several months prior to the sale of the establishment to H. M. Goss & Co. John P. Goss had been conducting the business in the name of his wife, buying goods and having them shipped in her name. She swore this was done without any authority from her, and no explanation is offered of why Goss did it. After the new firm had carried on the business awhile, the son bought his mother's interest for about $500; but in the meantime the stock had been reduced. According to the testimony of Harry M. Goss, his father, about the time of the sale of the store, began to dispose of his personal property on his farms including the agricultural implements and live stock. Harry swore he bought some of the property and sold some for his father, to whom he paid the money received. What his father did with the money there is no testimony to show. Of the 600 acres of land set apart to John P. Goss at the cessation of business by Goss & Vandeventer, 400 acres, consisting of the most valuable land, was so deeply incumbered by mortgages that it brought less than the aggregate amount of the incumbrances, as Harry Goss swore. Two hundred acres of the remaining land was less valuable and was likewise heavily incumbered in proportion to its value. It sold for about $100 more than the incumbrance.

By the time the plaintiff's suit passed into judgment, practically all of defendant's personal property had been disposed of either to his son and wife or to other persons, and about all the assets remaining in his own name and subject to execution were the incumbered lands and some lots in the town of Florida. These properties were levied on, and, being insufficient to satisfy the judgment, Emma Goss was summoned as garnishee. One of the interrogatories propounded to the garnishee inquired concerning her acquisition of the stock of goods and the consideration she gave for it. She answered as follows: "In answer to interrogatory 4, garnishee says that at the time of the purchase of the stock of goods, wares, and merchandise, from said John P. Goss by said firm of H. M. Goss & Co. and the payment of two-thirds purchase price by garnishee, she, said garnishee, paid her said two-thirds to said John P. Goss on said 19th day of February, and made said payment in the following manner, to wit: That on said day John P. Goss was indebted to garnishee in a large sum of money, to wit, the sum of $2,400, for the rents and profits of certain real estate owned by garnishee, being an undivided one-third interest in 320 acres of land inherited from the estate of garnishee's father, William M. Vandeventer, deceased, located near Florida, in said Monroe county, and credit was by said garnishee on said day given to John P. Goss on account of said rents and profits theretofore received by him during a period of 24 years next preceding said time, said credit amounting to the sum of $1,597.02, and was accepted by said John P. Goss in discharge of said two-thirds of said purchase price." A reply to the answer was filed by the plaintiff, in which the statements contained in the above excerpt were denied generally, and the allegation made that the goods were transferred to appellant without any consideration in order to hinder and defraud defendant's creditors, several of whom had suits pending against him. Evidence was introduced by the garnishee for the purpose of showing the defendant was solvent in February, 1900, when he sold the stock of goods to his wife and son. The highest estimate of his assets at the time was given by his son Harry. We omit the 600 and odd acres of land Goss owned, for his son swore the land was so heavily mortgaged that it barely realized the amount of the incumbrances, and it appears that at the foreclosure sales it brought a good price per acre. His...