Wood & Houston Bank v. Read

• Decision Date: 11 December 1895
• Citation: 33 S.W. 176,131 Mo. 553
• Parties: Wood & Houston Bank, Appellant, v. Read et al
• Court: Missouri Supreme Court

33 S.W. 176

131 Mo. 553

Wood & Houston Bank, Appellant, v. Read et al

Supreme Court of Missouri, First Division

December 11, 1895

Appeal from Jasper Circuit Court. -- Hon. W. M. Robinson, Judge.

Affirmed.

McReynolds & Halliburton for appellant.

(1) The deed from defendant L. R. Read to defendant Helen, while dated and acknowledged prior to the marriage, was not delivered until after the marriage and had no validity or effect until delivered. Huey v. Huey, 65 Mo. 689; Turner v. Carpenter, 83 Mo. 333; Hammerslough v Cheathem, 84 Mo. 13; Sneathen v. Sneathen, 104 Mo. 201. (2) The marriage contract between defendants, relied upon as a consideration for the deed from defendant L. R Read to defendant Helen, was void and could not be enforced for two reasons. First. Because not in writing. R. S. 1889 secs. 5186, 6853. Second. Because indefinite and uncertain in its terms and no property described. Mastin v. Halley, 61 Mo. 106; Louthan v. Stillwell, 73 Mo. 493; Ringer v. Holtzclaw, 112 Mo. 519. (3) The contract between defendants being void, the delivery of the deed after the marriage was voluntary and the transaction became a postnuptial settlement, and, having no valid antenuptial agreement to support it, it is void as to prior creditors. A parol antenuptial contract is not sufficient to support a postnuptial settlement. 1 Bishop, Law of Mar. Women [1 Ed.], secs. 777-779, 809-812; Pawley v. Vogel, 42 Mo. 291; Satlerwaite v. Emery, 43 Am. Dec. 618; Carter v. Smith, 60 Am. Rep. 740; Henry v. Henry, 27 Ohio St. 121; Flourier v. Flourier, 29 Ind. 564; Wood v. Savage, 2 Ding. (Mich.) 316; Loyd v. Fulton, 91 U.S. 479; Anderson v. Jones, 10 Ala. 400. (4) A voluntary conveyance will not be upheld against existing creditors who can not obtain satisfaction of their demand without resorting to property so conveyed, and will be set aside when made by a debtor in embarrassed circumstances without proof of fraud. Obermier v. Tresler, 9 Mo.App. 519; Bohannon v. Combs, 79 Mo. 305. And it is no defense that a creditor has other property upon which his judgment is a lien, as it is a lien upon both and he has the right to follow either. Patton v. Bragg, 113 Mo. 595. Indebtedness at the time of postnuptial settlement is evidence of fraud. Wodson v. Pool, 19 Mo. 340. In this state it has been held that an unrecorded marriage contract, while good between the parties, is void as to creditors without notice, under a statute substantially the same as our present statute on marriage contracts. Wilkinson v. Robinson, 19 Mo. 446; State v. St. Gemmie's Adm'r, 31 Mo. 230.

J. T. James and A. H. Redding for respondents.

(1) The delivery of a deed is a mixed question of law and fact, and in this case was sufficient to vest title in Helen Smith. The grantor, L. R. Read, signed, sealed, and acknowledged the deed, and intended that it should take effect as a conveyance and pass the title to Helen Smith. Staniford v. Staniford, 97 Mo. 231; Miller v. Lullman, 11 Mo.App. 423; Burke v. Adams, 80 Mo. 504; Rogers v. Carey, 47 Mo. 232. (2) The consideration for that deed was marriage, the most valuable and favored by the law. Powell v. Moeller, 107 Mo. 471. (3) The conveyance from Read to Helen Smith was made in accordance with an antenuptial promise. It was made for the most valuable consideration and in strict pursuance of a promise made before marriage and with a view to marriage. It was valid and should be upheld. Miller v. Lullman, 11 Mo.App. 424. (4) The contract between L. R. Read and Helen Smith was not void, but voidable only. They had a right to waive the necessity of the writing required by the statute and make the contract binding by fully performing it. Railroad v. Clark, 121 Mo. 186; Aultman v. Booth, 95 Mo. 386; Maybee v. Moore, 90 Mo. 343. (5) It would seem that the execution of the deed from L. R. Read to Helen Smith would be sufficient to take it out of the statute of frauds, although not delivered. Bowles v. Woodson, 6 Gratt. (Va.) 78; Parrill v. McKinley, 9 Gratt. 1. But the marriage ceremony having been duly performed and the deed delivered, the contract was fully performed and taken out of the statute of frauds long before the plaintiff commenced its suit against these defendants. (6) A consideration of marriage is one highly favored in law, and although a parol antenuptial contract may be within the statute of frauds, yet if it be wholly performed it will be binding upon the parties and third persons, and the rights acquired thereunder will be secure. Kelley on Married Women, pages 2 and 3, sec. 2; Crane v. Gough, 4 Md. 316; Wait on Fraudulent Conveyance, Creditors' Bill [2 Ed.], page 302, section 212. (7) Before an executed antenuptial contract will be held void, as to creditors for fraud, it must be shown that both the grantor and grantee participated in the fraud. The leading case on this point is Prewit v. Wilson, 103 U.S. 22. See, also, Maginac v. Thompson, 7 Pet. 348, 349; State to use v. Mason, 112 Mo. 374; Van Raalte v. Harrington, 101 Mo. 602. The petition does not charge fraud on the part of Helen Smith (Read), or that she knew that L. R. Read was indebted to anyone; but, on the contrary, the evidence shows conclusively that she knew nothing of L. R. Read's financial condition at the time the contract was made.

Brace P. J. Robinson, J., not sitting.

OPINION

Brace, P. J.

The defendants are husband and wife. The wife's name prior to her marriage was Helen Smith. They were married in the state of Illinois on the twenty-eighth of October, 1891. This action is to set aside a deed executed by the said L. R. Read, dated September 15, 1891, conveying to the said Helen Smith certain lots in Webb City in Jasper county, described in the petition, which deed was filed for record on the twenty-sixth of February, 1892.

On the eighteenth of April, 1892, the plaintiff recovered judgment in the Jasper county circuit court against the said defendant L. R. Read for the sum of $ 1,800, on which judgment execution was issued and levied upon said real estate, and at the sale in pursuance thereof plaintiff became the purchaser and received a sheriff's deed therefor. Afterward this suit was instituted returnable to the March term, 1893, of the said circuit court, the plaintiff alleging in its petition that said deed from the said L. R. Read to the said Helen Smith was voluntary, without consideration, and made for the purpose of defrauding the creditors of said Read.

It appears that the liability upon which plaintiff's said judgment was recovered was as a stockholder in a bank in the state of Kansas, against which the plaintiff had recovered a judgment in that state in January, 1891, and that the Jasper county suit was instituted in February, 1892.

In August, 1891, the said defendant Helen was a widow residing in Elburn, Illinois, knowing nothing about defendant's property, or his liabilities, to whom the said L. R. Read then residing in Webb City,...