Walther v. Null

• Decision Date: 02 March 1911
• Citation: 134 S.W. 993,233 Mo. 104
• Parties: FERD WALTHER, Appellant, v. W. H. NULL
• Court: Missouri Supreme Court

134 S.W. 993

233 Mo. 104

FERD WALTHER, Appellant, v. W. H. NULL

Supreme Court of Missouri

March 2, 1911 ^[*]

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Jefferson Circuit Court. -- Hon. Jos. J. Williams Judge.

Reversed and remanded (with directions).

Kleinschmidt & Reppy for appellant.

(1) Probate courts are courts of general jurisdiction and their judgments are conclusive in collateral proceedings. Johnson v. Beazley, 65 Mo. 250; Vaslor v Brock, 84 Mo. 574. (2) The allowance by the probate court of a note has the force and effect of a judgment, and the question whether it was supported by a valuable consideration cannot be raised in a subsequent suit in the circuit court. Clark v. Thias, 175 Mo. 628. (3) A voluntary conveyance by a debtor in embarrassed circumstances, or by one whom the conveyance itself renders insolvent, is fraudulent and void as to creditors. Snyder v. Free, 114 Mo. 370; Needles v. Ford, 167 Mo 495; Shaw v. Tracy, 83 Mo. 224; Clark v. Thias, 173 Mo. 652; Walsh v. Ketchum, 84 Mo. 427; Snyder v. Free, 114 Mo. 369. (4) A conveyance for support of grantor during his lifetime is fraudulent and void against creditors. 14 Am. & Eng. Ency. Law, p. 433; Robinson v. Robards, 15 Mo. 467; Swift v. Hart, 35 Hun (N. Y.) 128; Perry v. Hardison, 99 N.C. 21. (5) Indebtedness at time of voluntary conveyance is evidence of fraud. Woodson v. Pool, 19 Mo. 340. (6) A false recital of consideration is a badge of fraud. Benne v. Schnecko, 100 Mo. 256. (7) The conveyance to a creditor with a delegation of power for him to prefer other creditors is fraudulent and void as to creditors not provided for. Seger v. Thomas, 107 Mo. 641; Harnill v. England, 57 Mo.App. 106; Oliver Finnie Grocer Co. v. Miller, 53 Mo.App. 107; Barnum v. Hemstead, 7 Paige 568. (8) Where request is made the court must make finding of facts. Young v. Stephens, 66 Mo.App. 222; Bailey v. Emerson, 87 Mo.App. 225; Kostube v. Miller, 137 Mo. 173.

Byrns & Bean for respondent.

(1) The failure of the court to make a finding of the facts is not reversible error in an equity case such as this; the court on appeal tries the case de novo. Miller v. McCaleb, 208 Mo. 572; Gaines v. Grocery Co., 107 Mo.App. 532. (2) Plaintiff, in his petition, seeks to have the deed set aside, because it was voluntary and wholly without consideration and in fraud of creditors. There is absolutely no proof to support such a charge, as it is undisputed under the evidence in this case that the deed was made for a valuable consideration. The plaintiff under his prayer for general relief can have only such relief as is consistent with his petition. McNair v. Biddle, 8 Mo. 188; Muenks v. Bunch, 90 Mo. 507; Newham v. Kenton, 79 Mo. 382; Schnider v. Patton, 175 Mo. 723; Orchard v. Bank, 121 Mo.App. 348. (3) The deed in question was made to the respondent for a valuable and adequate consideration, and there was no evidence of any fraudulent intent upon the part of either the grantor or grantee, and plaintiff's bill was properly dismissed. Jones v. Geery, 153 Mo. 476; Nichols v. Ellis, 98 Mo. 344. (4) It appears from testimony offered by plaintiff as to his claim on the note against John W. Null, Sr., that although allowed by the probate court, such allowance was procured by collusion with the administrator of said Null's estate. Plaintiff therefore has no standing in a court of conscience. He who seeks equity must do equity. Fred Walther was not a creditor of John W. Null, Sr., at the time the deed in question was made, and it was none of his concern what disposition Null made of his property. He who comes into equity must come with clean hands. Plaintiff's bill is based on the judgment of the probate court, which was procured by collusion, as shown by his own testimony. He knows the deed has been made, shortly after its execution, yet delays proceedings to collect the old note until after Null's death, Null having stated in his lifetime that the note had been paid by his taking care of plaintiff's family, a statement which plaintiff, although a witness in the case, did not deny. Such a judgment as plaintiff has procured in this case, considering the nature of the claim and the manner of its allowance, cannot be made the basis of a creditor's bill in a court of equity. Sargent v. Salmond, 27 Me. 539. Equity views with disfavor suits brought after the death of the party whose estate is sought to be charged, where the fraud alleged is known before and suit might have been brought during the life of the party acquainted with the whole business, but without reason or excuse is delayed till after his death. Lenox v. Harrison, 88 Mo. 496; State ex rel. v. West, 68 Mo. 229; Dexter v. McDonald, 196 Mo. 399.

LAMM, J. Graves, Kennish, Ferriss and Brown, JJ., concur; Woodson, J., dissents in opinion filed; Valliant, C. J., absent. Valliant, J., concurred in Division; Lamm, J., dissented.

OPINION

In Banc.

LAMM J.

From a decree dismissing his creditor's bill, plaintiff on due steps comes up by appeal. The cause, once submitted in Division, came into Banc because the brethren disagreed.

Shortly, the case on the pleadings is this:

The petition is in the nature of a creditor's bill. It charges that one John W. Null in 1901, then the owner of a farm in Jefferson county, Missouri, of 362 acres, and then indebted to plaintiff on a promissory note for $ 478.42, conveyed said farm to defendant with the intent to hinder, delay and defraud his creditors, among them plaintiff, by a deed put of record; that the express consideration in the deed, $ 10,000, was false and feigned; that no consideration passed, but the conveyance was voluntary; that thereby the grantor was made wholly insolvent and stripped of ability to pay his debts; that grantor died in 1905, and his estate was in charge of the public administrator and in process of administration; that he left no landed estate and was so poor in wordly goods that his chattels were insufficient to pay funeral expenses and costs of administration; that plaintiff's said claim had been allowed by the probate court of Jefferson county for $ 744.10, and thereby merged into a judgment for that sum and placed in the fifth class of demands; and that, unless said real estate can be reached and subjected to such judgment, it will remain wholly unpaid.

Wherefore, a decree was prayed that the conveyance be set aside as void through fraud, and be certified to the probate court in order that the land might be dealt with there as a debt-paying asset of decedent's estate.

Defendant answered, admitting the execution of the note and deed, denying all other allegations -- averring, furthermore, that he bought the land in the ordinary course of business in good faith for full value, without any knowledge of the existence of a debt to plaintiff; that if there ever was a debt, it had long since been paid and satisfied; that, moreover, it was barred by the Statute of Limitations; that if any credits appear on the note, they had been put there for the purpose of keeping it alive and were not made by decedent; that defendant, in possession of the land ever since his deed in 1901, had been to a large outlay in making permanent improvements; that plaintiff knew of defendant's purchase and acquiesced in the sale and transfer to him, in that grantor, after the transfer, lived in the village of Hematite (a village hard by the land) until his death; that plaintiff was his son-in-law and from the time of the transfer until his death made no claim on account of said note until grantor's death, either to him or defendant, nor did he ever claim or pretend to have a charge on or claim against said land until the death of grantor.

The cause was heard below at the May term, 1906, of the Jefferson Circuit Court, and the chancellor took time to consider. At the January term, 1907, he refused to make a finding of fact and state his conclusions of law on the parol request of plaintiff, but entered a bald judgment dismissing the bill -- plaintiff saving his exceptions. Presently, on the same day, plaintiff filed a written request for a finding of facts and conclusions of law, stated separately, which request was refused and plaintiff excepted.

Error is assigned: first, on the foregoing rulings; and, second, on the decree, in that it was for defendant and not for plaintiff.

I. There is no substance in the first assignment. The cause, being in equity, is here for consideration anew. Therefore, the controlling question is: Did the chancellor on the legal evidence in the record, seek equity and do it? -- not whether he made a finding of fact. If he had made a finding and incorporated it into the record, its office would have been merely advisory. It would have been put, as to us, on the foot of a finding of a jury to him if he had asked one's advice on an issue of fact in an equity case. So runs the law. [Pitts v. Pitts, 201 Mo. 356, 100 S.W. 1047.] How could plaintiff be hurt on the merits ultimately by a failure of the court below to give the upper court mere advice (whether good or bad) by way of a finding of fact and conclusions of law? It has been soundly ruled that the statute requiring a written finding of fact and conclusions of law (R. S. 1909, sec. 1972), on request, pertains to law suits and not to equity cases pure and simple. [Fitzpatrick v. Weber, 168 Mo. 562, 68 S.W. 913.] This ruling is grounded on the theory that in a law suit, proper, a finding of fact is of substance, it fills a due office, viz., it is in the nature of a special verdict which we may not interfere with on appeal if there be substantial evidence to support it. By and large, the point has been...