Wertheimer-Swartz Shoe Co. v. Wyble

• Decision Date: 17 November 1914
• Docket Number: No. 16445.,16445.
• Parties: WERTHEIMER-SWARTZ SHOE CO. et al. v. WYBLE et al.
• Court: Missouri Supreme Court

170 S.W. 1128

261 Mo. 675

WERTHEIMER-SWARTZ SHOE CO. et al. v. WYBLE et al.

No. 16445.

Supreme Court of Missouri.

November 17, 1914.

FRAUDULENT CONVEYANCES (§ 259)—PETITION —JUDGMENT.

Where a petition by attachment creditors, who had bought at execution sale the interest of the debtor in property paid for by him, but conveyed to his wife, and subsequently conveyed by her to others, prayed that the conveyance to the wife be set aside as a fraud upon creditors, a judgment finding for the plaintiffs and decreeing that the purchasers at the execution sale were the owners of the land, must be reversed, and the cause remanded, with leave to amend.

Graves and Bond, JJ., dissenting.

En Banc. Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by the Wertheimer-Swartz Shoe Company and others against Clevie H. Wyble and others. Judgment for the plaintiffs, and defendants appeal. Reversed and remanded.

Suit begun in Pike county circuit court, August 26, 1909. The plaintiffs are Wertheimer-Swartz Shoe Company and Landau Grocery Company, corporations, and Louis Landau, their trustee. The defendants are Clevie H. Wyble, Bank of Eolia, and William J. Buchanan. The object of the suit is to obtain a decree establishing the title to about 100 acres of land in Pike county as against the defendants.

The petition states, in substance: That in October, 1906, D. Taylor Sanderson and Robert B. Sanderson, as executors of the will of Thomas N. Sanderson, deceased, for the consideration of $4,000, conveyed the land in question to Tillie P. Rettke, wife of one Gustavus Charles Rettke, by deed duly recorded. That the purchase money was paid by Gustavus Charles Rettke by the transfer to the grantor of a stock of goods owned by him in a store which he was running in the town of Cyrene, in said county for $1,500, and the execution of the joint note of himself and wife for $2,500, which he afterwards paid. That the conveyance of the lands to said Tillie "was a mere subterfuge, made, contrived, and designed by her and her said husband to cover up the means of her said husband and was so made with the intent to hinder, delay, and defraud the creditors of the said Gustavus, and especially the plaintiffs." That during the months of June to September, inclusive, 1906, the said Gustavus, while running and operating his said store in Cyrene, became indebted to the Wertheimer-Swartz Shoe Company in the amount of $245, and to the Landau Grocery Company in the amount of $222.30. That each of said plaintiff corporations brought suit against him by attachment on November 9, 1906, alleging as grounds for such attachment that he had fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors, that he had concealed, removed, and disposed of his property and effects so as to hinder and delay his creditors, and that the debt sued for was fraudulently contracted. Writs of summons and attachment were sued out on the same date in each case. The summons in each was duly served, and on the 11th day of November the sheriff levied upon and seized the land in question under the writ in the case of the Landau Grocery Company and on the 12th day of November, 1906, levied upon and seized the same land in the Wertheimer-Swartz Shoe Company Case, filing the abstracts of the attachment in both cases on the last-named date. Both these abstracts recite the levy of the attachment upon the land to have been on the 12th day of November. The petition further recites, with sufficient detail, that the defendant in each of those cases made default and that judgment was taken against them, respectively, for the amount of their respective claims and interest. That an execution was issued on the Landau judgment April 2, 1907, under which the sheriff levied upon and seized all the right, title, interest, and estate of the said Gustavus Charles Rettke in and to said real estate, and sold it at the June term, 1907, and that Louis Landau, as trustee for the other plaintiffs herein, became the purchaser for the price and sum of $3, and that thereupon the execution was returned by the sheriff unsatisfied, "and the said Louis Landau has ever since said sale and purchase by him held the title to said real estate in trust for the use, benefit, and behoof of the other plaintiffs therein to wit: Said Wertheimer-Swartz Shoe Company and Landau Grocery Company and still holds the same." The petition proceeds as follows:

"That the said judgments were from and after said 12th day of November, 1906, and still are, liens upon said real estate; that on the 23d day of August, 1907, said Tillie P. Rettke and her said husband by deed of conveyance of that date purported to convey said lands to said Clevie H. Wyble, which said deed was made without any consideration moving therefor, and was made with full notice to the parties thereto of the attachment of said lands, the lien thereon, and the sale thereof as hereinbefore set forth; that such pretended sale was made and accepted in bad faith for the purpose of defrauding, hindering, and delaying the creditors of said Gustavus Charles Rettke, and Clevie H. Wyble held said lands in trust for said creditors, and the said Clevie H. Wyble still so holds the same; that on the 30th day of August, 1907, said Clevie H. Wyble made a deed of conveyance of said lands, purporting to be a deed of trust in the nature of a mortgage, to said William J. Buchanan, as trustee for said bank of Eolia, made for the pretended purpose of securing the payment of a promissory note for $2,000, made as alleged by said grantor to said bank; that said deeds of trust and promissory note were made without any consideration therefor, and with the full knowledge by all of the parties thereto of said attachment liens on said lands, the said sale, and the purchase thereof, and made for the purpose of aiding said Gustavus Charles Rettke, Tillie P. Rettke, and Clevie H. Wyble in hindering, delaying, and defrauding said creditors.

"Plaintiffs further state that said Gustavus Charles Rettke was rendered insolvent by said alleged sale of said lands to his wife, that he had no other property at any of the times herein mentioned, nor has he any now, and plaintiffs have no remedy at law, and no means of collecting their said debts, except by proceedings as herein set forth.

"Wherefore plaintiffs pray that said conveyances of said lands to said Tillie P. Rettke, to the said Clevie H. Wyble, and the deed of trust to said William J. Buchanan, trustee for said Bank of Eolia, and each of them, he held fraudulent and void as against the creditors of said Gustavus Charles Rettke, and especially the plaintiffs, and for all such further relief as may be deemed meet and just, and for costs."

Wyble answered, admitting the execution of the deed from Tillie P. Rettke to himself, and denying all other allegations of the petition. The bank and Buchanan filed a joint answer, admitting the execution of the deed of trust, and denying each of the other allegations of the petition. It will be observed that there is no allegation in the petition of the execution of a deed by the sheriff. The respondents made the following statement in their brief:

"This suit was brought under section 416, Revised Statutes 1899. Every allegation as required by said section is set out in the petition."

The court recites in its decree:

That the Sanderson conveyances "were fraudulent as to the plaintiffs, and were a part of the plans and scheme, and were procured by the said Tillie P. Rettke with the knowledge of the other defendants, for the purpose of defrauding the plaintiffs herein. That the said conveyance of said lands to said Tillie P. Rettke, was a mere subterfuge, made, contrived, and designed by her and her husband, to cover up the means of her said husband, and was so made with the intent to hinder and delay and defraud the creditors of the said Gustavus, and especially the plaintiffs herein." Also that "said plaintiff, Louis Landau, as trustee for the other plaintiffs herein, became the purchaser of said real estate for the price and sum of $3, and said execution was by said sheriff returned unsatisfied, and the said Louis Landau has ever since said sale and purchase by him held the title to said real estate in trust for the use, benefit, and behoof of the other plaintiffs herein, to wit, said Wertheimer-Swartz Shoe Company and Landau Grocery Company, and still so holds the same." Also that the deeds from the Sandersons to Mrs. Rettke "were fraudulent as to the plaintiffs, and were a part of the plans and scheme, and were procured by the said Tillie P. Rettke, with the knowledge of the other defendants, for the purpose of defrauding the plaintiffs herein, and were and are fraudulent and void as against the deed made and executed by W. F. Campbell, as sheriff of Pike county, Mo., dated the 11th day of June, 1907, and conveying to plaintiffs the right, title, and interest of said Gustavus Charles Rettke in and to the lands above described, and the plaintiffs have and recover of the defendants their costs in this behalf expended, and that they have execution therefor."

The decree also mentions quitclaim deeds of 23 other persons, made and recorded before the beginning of this suit, and not mentioned in any pleading in the case, holding that they were made without consideration, for the purpose of correcting supposed defects in the original executors' deed, and are fraudulent and void as to the plaintiffs.

Pearson & Pearson, of Louisiana, Mo., and J. H. Blair, of Bowling Green, for appellants. Tapley & Fitzgerrell, of Bowling Green, for respondents.

BROWN, C. (after stating the facts as above).

Under the ruling of this court in Craig v. Railroad, 248 Mo. 270, 154 S. W. 77, approved in Bridge Co. v. Corrigan, 251 Mo. 683, 158 S. W. 39, the bill of exceptions was filed too late, and the case is before us on the record proper only. This imposes the duty to...