Wolfsberger v. Mort
| Decision Date | 02 February 1904 |
| Citation | 78 S.W. 817,104 Mo. App. 257 |
| Court | Missouri Court of Appeals |
| Parties | WOLFSBERGER v. MORT et al. (FRITSCH, Interpleader.)<SMALL><SUP>*</SUP></SMALL> |
Appeal from Circuit Court, St. Louis County; J. W. McElhinney, Judge.
Action by Robert Wolfsberger against Jesse Mort and another to recover on a judgment aided by attachment. Lena Fritsch interpleaded therein, claiming the attached property, and from a judgment in favor of plaintiff she appeals. Affirmed.
Geo. L. Edwards, for appellant. E. H. Wolfsberger, for respondent.
The evidence is that on January 2, 1897, Jesse Mort borrowed of plaintiff $200, and gave his promissory note therefor, due six months after date, with Emil Fritsch as security. The note was not paid at maturity, and plaintiff brought suit thereon before a justice of the peace, and on September 11, 1901, recovered a judgment against both Mort and Fritsch for the principal and interest ($256.40) then due. The judgment was not paid. In 1902 Mrs. Fritsch, the interpleader, and wife of Emil Fritsch, was advised by her physician to go to Colorado Springs, Colo., for the benefit of her health. She, preparatory to removing with her husband and children to Colorado Springs, advertised her personal property for sale on June 21, 1902. The plaintiff brought suit on his judgment (on the note) in the circuit court of St. Louis county, and in aid of the suit sued out a writ of attachment against Emil Fritsch. The officer to whom the writ of attachment was delivered seized a lot of personal property as the property of Emil Fritsch, found in the house where he resided with his wife and children, in the city of Kirkwood, St. Louis county. A grand piano was one of the articles attached by the officer. Fritsch and wife gave a forthcoming bond for the property, and it was returned to them. Mrs. Fritsch filed her interplea, claiming the attached property as her separate and individual property. The allegations of the interplea were denied by plaintiff, and the issues thus made were submitted to the court sitting as a jury, who, after hearing the evidence, found that the interpleader had purchased the piano partly with her separate means and partly with the means of her husband, Emil Fritsch; that of the latter's money $237.50 was used in the purchase of the piano; and adjudged the attachment a lien on the piano for the payment of that sum, giving to interpleader the right to discharge the lien on the payment of said sum of $237.50. From this judgment the interpleader appealed to this court.
The title to none of the property attached is involved on this appeal except the piano. The evidence shows that at the time of the marriage of Mrs. Fritsch to her husband (1891) she had saved a few hundred dollars from her earnings; that with this money Mrs. Fritsch purchased a lot in the city of Kirkwood, taking the deed to herself. After purchasing the lot, she borrowed a thousand dollars, giving as security a deed of trust on the lot executed by herself and husband. With this money she erected a dwelling on the lot, in which she and her husband resided until the day the attachment was levied. The $1,000 borrowed were paid mostly by a new loan of $900 secured as was the first loan. This debt has not been paid. The evidence shows that the management and control of their household affairs was given over entirely by Fritsch to his wife; that all purchases of furniture and household goods were made by her in her name, and were claimed by her as her separate property. Mrs. Fritsch's evidence tends to show that she kept roomers or boarders from time to...
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... ... wife. George v. Surkamp, 76 S.W.2d 368; Kirby v ... Bruns, 45 Mo. 234; Wolfsberger v. Mort, 78 S.W ... 817; Gray v. McCormick, 23 S.E.2d 803; Secs ... 3506-07, R.S. 1939; Bishop on Prior Equities (4th Ed.), p ... 312. (2) The ... ...
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...an agreement or for a consideration, and, being purely voluntary, was, of course, fraudulent as to creditors. In Wolfsberger v. Mort et al., 104 Mo. App. 261, 78 S. W. 817, the insolvent husband had mingled his money with his wife's in a joint bank account, out of which the property in cont......
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