Walsh v. Chambers

• Decision Date: 27 February 1883
• Citation: 13 Mo.App. 301
• Parties: THOMAS WALSH, Appellant, v. B. M. CHAMBERS ET AL., Respondents.
• Court: Missouri Court of Appeals

13 Mo.App. 301

THOMAS WALSH, Appellant,

v.B. M. CHAMBERS ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Feb. 27, 1883.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

H. A. & A. C. CLOVER and HAYDEN & GLOVER, for the appellant: The deed of the husband to his wife is not only absolutely void, but void on the face.-- White v. Wager, 25 N. Y. 328; Ransom v. Ransom, 30 Mich. 328. The deed in itself is no more valid or operative in equity than in law.-- Loomis v. Brush, 36 Mich. 40. In the absence of a cross bill, chancery could not, under any circumstances, recognize in her the right she seeks to enforce.-- Walker v. Walker, 25 Mo. 367, 375. Equity will not assist the wife under circumstances like the present. The following cases show that the conduct of the defendants bars their defence to this suit.-- Cates v. Gerlach, 44 Pa. St. 46, 47; Scrivenor v. Scrivenor, 7 B. Mon. 374. And the question is not of actual fraud, but of the tendency of the acts and of public policy.-- Hildeburn v. Brown, 17 B. Mon. 782; Sands v. Hildreth, 14 Johns. 499; Tarbuck v. Marbury, 2 Vern. Ch. 510; Hungerford v. Earle, 2 Vern. Ch. 261. The deed is a nullity, and the record of the deed in October, 1877, did not impart notice to the plaintiff.-- Loomis v. Brush, supra; 14 Mich. 361; Buel v. Irwin, 24 Mich. 145. An unrecorded deed passes title between the parties; but to be valid against creditors and purchasers without actual notice, a deed must be lodged for record within the time prescribed by law, or within a reasonable time.-- Dozier v. Barnett, 13 Bush, 457; Thompson v. Murrell, 16 Fla. 773. Property other than her own earnings, coming to the wife during the marriage, is the husband's, when in possession and not settled on the wife to her separate use.-- Kidwell v. Kirkpatrick, 70 Mo. 216; Clark v. National Bank, 47 Mo. 17; Woodford v. Stephens,51 Mo. 443; Smith v. Smith, 50 Mo. 262; Welsh v. Welsh, 63 Mo. 57. Where a wife advances money to her husband and allows him to use it, such capital and its fruits in business will be subject to the debts of the husband.-- Patton v. Yates, 67 Ill. 164; Wortman v. Price, 47 Ill. 22; Hackett v. Bailey, 86 Ill. 74; Miller v. Payne, 4 Bradf. 112. It being here shown that there were positive acts constituting legal fraud, it is immaterial whether the plaintiff was a prior or a subsequent creditor. The chancellor here has not to find fraud as a fact; consequently the date of plaintiff's judgment is not material. The facts are patent, and the law stamps these as fraudulent in law. Again, that subsequent creditors can avail themselves of such acts is well settled, a fraudulent intent against one creditor being such against all.--Bump's Fr. Conv. 336, 337; Mead v. Gregg, 12 Barb. 653; Hutchinson v. Kelly, 1 Rob. 123; Thomas v. Dougherty, 12 Serg. & R. 448.

MARTIN & LACKLAND, for the respondents: A valuable and adequate consideration stamps a transaction with the insignia of good faith, and the burden is imposed on the creditor to impeach it for mala fides.-- Glen v. Grover, 3 Md. 212; Wilson v. Lott, 5 Fla. 302; Sibley v. Hood, 3 Mo. 206. If the debtor sells with the view to raise funds to pay his debts, or if he immediately applies the consideration received to payment of his debts, the supposed intent to defraud his creditors by the sale is conclusively repelled and overthrown.-- Kendall v. Hughes, 7 B. Mon. 368; Brown v. Force, 7 B. Mon. 357; Johnson v. McGrew, 11 Iowa, 151; Uhler v. Mulfair, 23 Penn. 401; Ashmead v. Hean, 13 Penn. 584; Lowey v. Pennison, 2 Bailey, 324. There is no evidence upon which to predicate a reduction to his possession of the wife's personalty, by the husband, in this case. Until reduced it was hers, and will in all courts be protected for her.-- Croft v. Bolton, 31 Mo. 355; Anthony v. Knots, 6 B. Mon. 24; Ready v. Bragg, 1 Head, 50. The distributive share of a wife in an inheritable estate, does not belong to the husband.-- Leaky v. Maupin, 10 Mo. 368; Gillett v. Camp, 19 Mo. 404; Page v. Estes, 19 Pick. 269. Not having been reduced to possession by the husband, this portion of her distributive share must remain as at common law, her own, and as such it constitutes a valuable consideration for any purchase made by her.-- Mead v. McLaren, 48 Mo. 116; Kinner v. Walsh, 44 Mo. 65; Smith v. Smith, 50 Mo. 262; Bullard v. Briggs, 7 Pick. 533; Wicks v. Clark, 8 Paige, 161. “A husband may, with or without the intervention of a trustee, enter into a contract with his wife for a valuable consideration, and a settlement made in pursuance of such agreement will be good against prior as well as subsequent creditors.”--Bump, 314; Schaeffer v. Reuter, 37 Barb. 44; Wicks v. Clark, 8 Paige, 161; Babcock v. Eckler, 24 N. Y. 623; Stockett v. Holliday, 9 Md. 480; Dyget v. Remmerschnaider, 32 N. Y. 62; Bullard v. Briggs, 7 Pick. 533; Miller v. Talleron, Harp. Ch. 145; Tennison v. Tennison, 46 Mo. 77; Terry v. Wilson, 63 Mo. 493. The recording of a deed is notice to all persons not to give credit to the grantor on faith of it. So far as creditors are concerned, the omission to record a conveyance might induce persons to become creditors on faith of the grantor's supposed ownership. This could be an injury only as to subsequent creditors becoming such on the faith of the old ownership.-- Hidstran Kingsbury, 40 Mich. 636; Coats v. Grolach, 44 Penn. 47; Lyman v. Ford, 15 Iowa, 22; Gillett v. Gaffrey, 3 Col. 351; Dankins v. Kions, 53 Ind. 164; Case v. Phelps, 39 N. Y. 164; Hungerford v. Earle, 2 Vern. Ch. 261; Smith v. McDonald, 25 Ga. 377.

LEWIS, P. J., delivered the opinion of the court.

This is a proceeding in equity to annul a deed from the defendant B. M. Chambers, to the defendant Marie C. Chambers, his wife, to divest her of all title in the property conveyed, and to vest the same in the plaintiff.

It appears from the evidence that, in June, 1874, defendant B. M. Chambers owned the land in controversy, and executed a formal conveyance of it to his wife, for the expressed consideration of $20,000; that he owed, at the time, about $50,000 to the Butchers and Drovers' Bank, of which he was president, but was not insolvent, or supposed so to be; that the executors of Mrs. Chambers' deceased father had in their possession $20,000, due and payable to her from the estate; that Chambers, having agreed with his wife upon a sale of the land to her for that sum, executed and delivered a deed accordingly, which he placed in the hands of one of the executors, who paid to him thereupon the $20,000, in checks. The executor was told that the deed was not to be recorded, and it was not filed for record until October 19, 1877. The money received by Chambers was paid to the bank upon his indebtedness. On January 19, 1880, the plaintiff obtained a judgment against Chambers in the circuit court of the city of St. Louis, for $7,000. Execution was issued, and levied on the land in controversy, as the property of defendant B. M. Chambers. At the sheriff's sale plaintiff became the purchaser for $200. The levy was made on August 30, 1880, and the sale on November 3, 1880. On March 22, 1880, a judgment was rendered in the United States Circuit Court for the eastern district of Missouri, in favor of Samuel B. Churchill, and against the defendant B. M. Chambers, for $1,654.01. An execution upon this judgment was levied on the same land, and Churchill became purchaser at the marshal's sale on January 10, 1881. Upon a hearing of the cause the court dismissed the plaintiff's bill.

The argument for a reversal assumes, as a starting point, that the deed from Chambers to his wife was absolutely void in law, because of the coverture, and the grantee's incapacity to take a deed from her husband. This position is in antagonism with the plaintiff's reply, which pleads that, on the 22d day of March, 1880, “the legal title to said real estate was not in said B. M. Chambers, * * * but in said Marie C. Chambers, by virtue of the deed in the petition described.” If the deed was void in law, it could not vest a legal title; and if it was capable of vesting a legal title, it was not void. The next step in the argument is, that, the relation between grantor and grantee being shown, and thus invalidating the deed, the plaintiff has made out his prima facie case, and the defendants have done nothing to rebut this, since they have not asked, in their answer, for a judicial recognition of any equitable title in the wife, as resulting from the conveyance. If these propositions be conceded, the plaintiff's case is easily disposed of by the Churchill judgment and sale. That judgment was a prior lien on the property, taking effect from the date of rendition. The plaintiff's judgment was earlier in time, but, as the land lay without the limits of the city, no lien arose until the execution levy. If, then, Mrs. Chambers' equitable rights must be ignored, because not pleaded, the Churchill judgment lien took immediate and complete effect upon the land, as the property of the defendant Chambers, who, having subscribed only a void deed, had made no conveyance at all. A lien thus created by express law needs no aid from a court of chancery, in a collateral proceeding. When followed up by an execution and a sale, it depends upon no race of diligence in subsequent proceedings, and cannot be impaired by the activity of a junior lienor, in instituting a suit like the present. No person claiming under the Churchill judgment, however, is a party to this suit, or will be concluded by any judgment rendered herein. The rights of such persons might therefore be properly excluded from our present inquiry. We refer to them, merely for the purpose of showing that, if they present any real difficulties in the way of the plaintiff's application, such difficulties are not overcome by his method of meeting them, or in any wise by the matter of his reply.

We think that this cause must be determined by the question whether Mrs....