Wrench v. Robertson

• Decision Date: 01 April 1915
• Docket Number: No. 17044.,17044.
• Citation: 175 S.W. 587
• Parties: WRENCH v. ROBERTSON et al.
• Court: Missouri Supreme Court

175 S.W. 587

WRENCH v. ROBERTSON et al.

No. 17044.

Supreme Court of Missouri, Division No. 1.

April 1, 1915.

Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge.

Action by Bess B. Wrench against Esther Robertson and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

L. H. Waters and Noyes & Heath, all of Kansas City, for appellant. Charles W. German and Griffin & Orr, all of Kansas City, for respondents.

BROWN, C.

This is a proceeding to set aside a deed from the defendant Goodwin and wife to the defendant Esther Robertson, dated July 2, 1908, conveying a house and two lots in Kansas City, on the ground that it is fraudulent as to the creditors of Orrin Robertson, the husband of the said Esther Robertson.

The petition was filed July 7, 1910, making Orrin Robertson and Fred C. Goodwin codefendants with Esther Robertson. It states, in substance, that on or about May 16, 1907, the defendant Orrin Robertson purchased the property in question and caused the conveyance to be made to the defendant Goodwin for his own use and benefit, and to fraudulently delay and hinder his creditors; that Goodwin paid no part of the purchase price; that on the 2d day of July, 1908, Goodwin and wife, at the instance and request of said Robertson, conveyed the said property to the defendant Esther Robertson, his wife; that, while the deed recites the consideration to be $70,000, it was, in fact, without any consideration whatever, and voluntary and fraudulent ; that the defendant Esther Robertson, at the time she and said Orrin Robertson became engaged to marry, and at the time the premises were conveyed to Goodwin, knew that said Orrin Robertson was insolvent and unable to pay his debts, and that the conveyance was made to Goodwin and the title to the premises was held by him to delay and hinder Robertson's creditors, and that the conveyance was made by Goodwin and wife to Mrs. Robertson with the intent, on the part of Robertson, to hinder and delay and defraud his creditors, and that both Goodwin and Mrs. Robertson then knew that he was insolvent; that when said conveyances were made Robertson was justly indebted to one Martin E. Ditzler upon his promissory note dated November 15, 1906, for the sum of $12,000, payable two years after date, with 6 per cent. interest; that at the January term, 1909, of the circuit court for Jackson county Ditzler recovered judgment against said Orrin Robertson for $11,789.15, being the balance then due on said note, upon which execution was issued and levied on the property in question, which was sold thereunder and purchased by Ditzler, who received a sheriff' deed therefor dated April 26, 1909; that Ditzler and wife sold and conveyed the premises to plaintiff on the 9th day of May, 1910. The petition asks that the cloud on her title created by said deed to Esther Robertson be removed, and the deed declared void as to plaintiff, and that the title be vested in plaintiff, and for general relief.

The defendant Goodwin answered by general denial. The defendant Mrs. Robertson answered that at the time she became engaged to Robertson, and as a consideration for her promise to marry him, he promised and agreed to convey to her the property in question, and that in compliance with said promise and agreement, and at the close of the marriage ceremony between them, he delivered the deed to her, and she then and there, as a further consideration, assumed and agreed by the terms of said deed to assume and pay the sum of $6,000, which then constituted an incumbrance on said land, and immediately filed said deed for record in the office of the recorder of deeds for said Jackson county. She denied that Orrin Robertson was ever indebted to Ditzler in the sum of $12,000, or any other sum, and charges that the judgment obtained by Ditzler against Robertson at the July term, 1909, of the Jackson county circuit court was fraudulent, and a collusive plan and scheme entered into by and between Ditzler and Robertson for the purpose of obtaining title to said premises from her, and that when Ditzler conveyed said premises to the plaintiff the same was in furtherance of said plan and scheme, and that the plaintiff, who was the private secretary and confidential clerk of Robertson, was acting for and representing him; that the deed of July 2, 1908, was of record at that time, and plaintiff had actual notice thereof. The answer then denies each and every allegation of the petition.

A second count is founded on section 2535 of the Revised Statutes of 1909, making the statutory allegation, and asking the court to ascertain and determine the estate of each of the parties respectively in the property, and to define and adjudge the same, "and to hear and finally determine any and all rights, claims, interests, and demands whatsoever of plaintiff and defendants" affecting said real estate, and to award full and complete relief.

The plaintiff by reply denied generally the allegations of the answer, and charged that the title to the premises had been placed in the name of Goodwin by Robertson long before he and the defendant were engaged to be married, to delay and hinder Robertson's creditors, and that the defendant then and there knew that the title was so conveyed to said Goodwin to place the same beyond the reach of the creditors of said Robertson, and that said Robertson caused the said Goodwin to convey said premises to defendant, who was then and there the wife of said Robertson, in order to fraudulently hinder and delay his creditors, and that the said conveyance to Goodwin and said Esther Rebertson, were severally void as to the creditors of said Orrin Robertson.

The several deeds mentioned in the pleadings are properly described by their dates and effect. The deed from Ditzler and wife', to plaintiff was a quitclaim deed in ordinary form, reciting a consideration of $1, and contained the following clause:

"This deed is made to convey all the title of the first parties to said lots which they received by a sheriff's deed dated January 20, 1909, and recorded in Book B—1164, at page 493, and none other."

The property was known as lots 1 and 2, Oakley, and consisted of five acres each. Ditzler testified that in the winter of 1904-5 he owned them and lived there himself, and sold them to the defendant Dr. Robertson for $12,500 each. He sold lot 1 December 24, 1904, the consideration being $12,500, payable as follows: $2,000 cash; $1,000 in six months; $1,000 in twelve months; $5,000 in three years; and $3,500 par value of the stock of the Quenemo Sanitarium Company at Quenemo, Kan., an institution said to have been owned by Dr. Robertson. The latter was represented by J. W. McMillan, a real estate man in Kansas City, and wanted Ditzler to make the deed to some South Dakota corporation, but his attorney wouldn't let him do it, so the deed was made to McMillan, who made the notes for the deferred payments, and later on deeded the lot to Mrs. Goodwin.

Ditzler had an option on the other lot (2) from Sam Brown, a Kansas City contractor, who was the owner. He sold it to Dr. Robertson in February, 1905, getting "a commission and stock" for selling it. The sale was for $12,500. The terms were: $2,000 cash; $1,000 in one year; $1,000 in two years; $1,500 in three years; and $7,000 in Quenemo stock. Of this Ditzler got $4,500 of Quenemo stock. Brown conveyed directly to Ditzler, and Ditzler, at the direction of Robertson, to Mrs. Goodwin. The Quenemo concern afterward got into the hands of a receiver, and was not running at the time of the trial. Ditzler said he got all the land was worth. The proceeds of the sale of lot 1 was $2,000 cash, $7,000 of McMillan's notes, and $3,500 in stock. He did not investigate the value of the stock at the time, but sold it back to Dr. Robertson. As to lot 2 the deal stood: Cash $2,000; Ditzler's notes for $3,500, secured by mortgage on the lot; and $7,000 of stock. Ditzler made these notes and the mortgage because Brown would not take them from Robertson. He did not investigate the value of the stock at the time, but did not think it was worth that much. The McMillan note of $5,000 secured on lot 1 was not, the witness said, paid at maturity, and he foreclosed it himself after the execution sale.

Dr. Robertson testified that at the time of these deals he owed Ditzler about $12,000. He also said that he received the bonds of the Sanitarium Company by way of compensation for his services. The only offer he could get for them was 25 cents. He turned them in for Texas lands, becoming indebted in that deal to the extent of $45,000. He also said that his indebtedness to Ditzler was on account of borrowed money about $4,000, and the remainder was for the purchase price of stock of the Quenemo Sanitarium stock. He had testified as to his indebtedness before Judge Powell in October, 1908, and also later before Judge Thomas, giving a list of his indebtedness, and failed to notice Miss Wrench's claim.

Miss Wrench testified that she became acquainted with Dr. Robertson on the 10th of August, 1904, at the Quenemo Sanitarium, whore she was visiting a friend; that she became secretary of that company in January, 1905, and continued in that office until August 1908, during which time the doctor from time to time borrowed money from her, going to make up the sum included in her judgment. Before she became secretary she did various things about the house—hemming bed linen and such work as that. She went to the World's Fair in St. Louis, October 19, 1904, and returned to Quenemo New Year's day, after which she helped in the office, learning the details of the work, and took up the work of secretary on the 15th of that month, receiving...