Zehnder v. Stark

• Decision Date: 28 February 1913
• Citation: 248 Mo. 39,154 S.W. 92
• Parties: ZEHNDER v. STARK.
• Court: Missouri Supreme Court

154 S.W. 92

248 Mo. 39

ZEHNDER v. STARK.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

1. FRAUD (§ 58) — EVIDENCE — SUFFICIENCY.

While fraud will not be presumed, it may be established by facts and circumstances from which fraudulent intent may be legitimately inferred.

2. FRAUD (§ 58) — CIRCUMSTANTIAL EVIDENCE — SUFFICIENCY.

For circumstantial evidence to be sufficient to establish fraud, it must be inconsistent with a contrary view of the transaction and lead irresistibly to that conclusion.

3. FRAUDULENT CONVEYANCES (§ 104) — CONVEYANCES FROM HUSBAND TO WIFE.

The courts, when in pursuit of fraud upon creditors, look with suspicion upon conveyances from husband to wife.

4. EVIDENCE (§ 584) — WEIGHT AND EFFECT.

Evidence, of whatever description, must yield, in so far as it conflicts with admitted or clearly established facts.

5. FRAUDULENT CONVEYANCES (§ 295) — HUSBAND AND WIFE — EVIDENCE.

Evidence held to show that a husband's deed to his wife was fraudulent as against his creditors.

6. ESTOPPEL (§ 74) — HUSBAND AND WIFE — CONVEYANCE — CREDITORS.

Where a husband purchases property in his own name with his wife's money and contracts a debt for fruit trees to improve such property, all with her knowledge, and the wife allows the title to remain in him for 13 years and until suit is begun against the property to enforce payment for the trees, when the husband conveys the property to her without any present consideration, she is estopped to establish a trust in the property as against the creditor; the statute which prohibits a husband from appropriating his wife's separate estate, except by her written consent, affording no protection against a creditor of the husband.

7. FRAUDULENT CONVEYANCES (§ 95) — HUSBAND AND WIFE — CONSIDERATION.

Where a wife accepted a conveyance of certain property from her husband in fraud of his creditors, she was chargeable with participating in the fraud, and held a tainted title, though the property may originally have been purchased with her money, where it was allowed to remain in his name for several years.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by Anna H. Zehnder against William P. Stark. From a decree for plaintiff, defendant appeals. Reversed and remanded with directions.

David W. Hill, of Poplar Bluff, for appellant. E. R. Lentz, of Poplar Bluff, for respondent.

LAMM, J.

Plaintiff sued under former section 650 (now 2535, R. S. 1909) to try, determine, and adjudge title to the S. ½ of the S. E. ¼ of section 27, township 25, range 6, in Butler county, and clear away the cloud of two sheriff's deeds purporting to convey it to defendant. From her decree, defendant appeals.

The form of the bill is not challenged.

The answer denies plaintiff's title, and avers that defendant's sheriff's deeds mentioned were operative to convey the land and vest title in him. It then, in 12 specifications, sets up estoppel and fraud to defeat plaintiff's title and prays for affirmative relief, viz., to clear away the cloud of a certain deed under which plaintiff claims. As the sufficiency of the answer is unchallenged, the specifications of fraud and estoppel may be passed by with the remark that they were definite and substantial enough to admit proofs educed in support of them.

The replication was conventional.

A brief preliminary outline of the case is this:

Plaintiff is the wife of John G. A. H. Zehnder, and has been during all times in hand. It will be observed that her name is Anna H., and that, by dropping the "John G." from his surname, his and her name have the same initials. Now the testimony shows her husband dropped the "John G." part of his name in use and signed as "A. H. Zehnder," that he was known by that name; that he did business under that name, except apparently in the matter of taking title to the land in question and in conveying it, when he used his full cognomen. Of the significance of this similarity of names, when so clipped, and the convenience of the use of the same name by both, we will speak again. John G. A. H. Zehnder was a butcher, and plied his trade in St. Louis, and then, from 1889 or 1890 onward, in Poplar Bluff. On the 19th of August, 1891, he took title to the land in suit by warranty deed from one Nickey. The consideration expressed is $1,100 in hand. In fact, however, but $200 was paid down, and $900 of the purchase price was evidenced by his individual notes for $100 each, payable one every six months, secured by a deed of trust on the land, notes and deed of trust executed only by himself, signing as "John G. A. H. Zehnder." These notes were severally paid as they matured, and the lien of the deed of trust lifted. The Nickey-Zehnder deed was kept off record for about one year and then spread thereon. Nearly thirteen years later (the land being in the meantime always assessed to him) he conveyed to her by a warranty deed for an expressed consideration of $500, which deed was recorded four months after it bore date. This is the deed challenged by defendant in this suit and relied on by plaintiff to confer title on her. The consideration nominated in the deed was wholly simulated, i. e., nothing, not even the traditional "peppercorn" of the old books, was paid. According to her own testimony, as we read it (of which more presently), plaintiff knew for, say, nine years that title stood in her husband's name, and with that knowledge she did not request a deed to be made to her at any time; nor was it made as the result of any negotiation between her and him disclosed by this record. In other words, she rested content. Nor, if her testimony is to be given credit, did she know of it, when it was made, for some time afterwards. She merely adopted his act, when she found it out. Whether it was delivered, other than by the constructive delivery springing from its record, is also dark.

Between the time Zehnder took title from Nickey and the date of his conveyance to his wife, things happened we will now relate. Zehnder, it seems, had two ends in view in buying the land, viz., a site for a slaughterhouse appurtenant to his trade as a butcher, and to grow a great orchard. Shortly after getting title, but before the record of his deed, he entered into three several written contracts with Stark Bros., nurserymen of Louisiana, Pike county, for fruit trees. The contracts were drawn by a field agent of Stark Bros. and forwarded to them for acceptance and signing. The deed not being recorded, Stark Bros. are not charged with notice of the true land description, nor with culpable negligence in trusting Zehnder to give it correctly. These contracts were made at different dates within a limit of a few months, and (mutatis mutandis) were in the same terms. Zehnder owned no other land in the county, and in order to get said trees from the nurserymen he offered to give them a lien on the land in suit, and this offer was accepted. It is clear he assumed the office of giving the land numbers to the scrivener, who, without information of his own, relied on him for them; but in doing so Zehnder put the land in section 25 instead of 27, as the fact was. As tall oaks from little acorns grow, so the great trouble in this case arose from changing a "7" to a "5," whereby the wisdom of Solomon's hint in his "Song" is confirmed about the little foxes that spoil the vines. The contracts were executed with this misdescription, and gave a lien on the misdescribed land to secure the purchase price of the fruit trees in annual payments covering 10 years, aggregating the rise of $2,000. They were signed "A. H. Zehnder," and duly acknowledged and promptly recorded. Why he took title in one name and assumed to give a lien on the land in another is left unexplained. The contracts further described the land as "his home farm," with "a perfect title," etc., and confessedly on the strength of those contracts he got from Stark Bros. on credit some eight or ten thousand fruit trees, to be planted on the land thus acquired from Nickey. They were received by him and delivered and planted, not on the land described in the contracts, but on "his home farm," the right land.

(Note. — There was some contention that these fruit trees were not as represented; that some were defective and did not grow, the details of which are immaterial because the indebtedness of Zehnder to Stark Bros. has been merged in a judgment, and the amount is no longer open to reagitation. It has passed into a thing adjudged. Stark v. Zehnder, 204 Mo. 442, 102 S. W. 992.)

Zehnder, in default in paying, in 1903 was being pressed therefor, and then, for the first time, Stark Bros. discovered said land misdescription — a thing known to Zehnder, if not from the start, at least for six or seven years, and kept to himself, he says. Refusing to pay, they brought a suit in equity against him to correct the misdescription, reform the contracts in that particular, foreclose the contract lien as reformed, and for a money judgment for the price of the trees with interest accrued, properly filing at the same time a statutory notice of lis pendens. Some three months thereafter Anna H. Zehnder made application to be made a party defendant, and was allowed to come in in that suit. Thereupon, on the 18th of February, 1904, she filed an answer.

(Note. — It will be observed that after suit brought and notice of lis pendens filed, her husband, as said, conveyed to her.)

In that case her position was that her husband purchased the land acting "as her agent" (Stark v. Zehnder, 204 Mo. loc. cit. 447, 102 S. W. 992); that, her money having paid for it, it belonged to her as against his creditors; that he took title in himself without her knowledge or consent. Furthermore, she, as did her husband, defended against the reformation of the fruit tree contracts on the theory plaintiffs' cause of action on that head accrued to them at once upon their execution; hence, as 10 years...