Walsh v. Chambers

• Decision Date: 27 February 1883
• 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.

Court of Appeals of Missouri, St. Louis.

February 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...