Zehnder v. Stark
| Decision Date | 28 February 1913 |
| Citation | 154 S.W. 92,248 Mo. 39 |
| Parties | ANNA H. ZEHNDER v. WILLIAM P. STARK, Appellant |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. Jesse C. Sheppard, Judge.
Reversed and remanded (with directions).
David W. Hill for appellant.
(1) A married woman, as to persons other than her husband, may be estopped in relation to such property rights like any other property owner. Leete v. Bank, 115 Mo. 184; Tennant v. Insurance Co., 133 Mo.App. 361; Riley v. Vaughan, 116 Mo. 169; Balz v. Nelson, 171 Mo. 689; Taliaferro v. Evans, 160 Mo. 380; Mfg Co. v. Stephens, 169 Mo. 1; Stone v. Bank, 81 Mo.App. 9; Orchard v. Collier, 171 Mo. 390. (2) Coverture is no defense in equity for fraud. Truesdail v McCormick, 126 Mo. 39. (3) A resulting trust must be established by testimony so clear, strong and unequivocal as to banish every reasonable doubt from the mind of the chancellor respecting the existence of such trust. Zehnder testified in the former suit that he purchased the land in controversy as his own. Mrs. Zehnder, in this case, testified that she was not present when the land was purchased and never saw the cash payment made and therefore cannot swear that such a payment was made. She does testify that she paid some of her husband's notes which were given for a portion of the purchase price, but she does not swear how many of such notes she paid. The testimony falls far short of showing a resulting trust in this case. Reed v Sperry, 193 Mo. 173; Garrick v. Garrick, 171 Mo. 155; Brinkman v. Sunken, 174 Mo. 709; Heil v. Heil, 184 Mo. 665; Crawford v. Jones, 163 Mo. 577; Curd v. Brown, 148 Mo. 82; Walker v. Walker, 147 Mo. 246. (4) To render a voluntary conveyance by a husband to his wife valid, as against prior creditors, the burden of proof is on the grantee to show that the debtor retained sufficient property to pay his debts. Hoffman v. Nolte, 127 Mo. 120; Bank v. Nichols, 202 Mo. 309. (5) If this deed had the effect to transfer the property to his wife, he was thereby rendered insolvent, for he had no other property, as his wife testified, and the attempted transfer is presumptively fraudulent as to Zehnder's creditors. Snyder v. Free, 114 Mo. 360; Scharff v. McGaugh, 205 Mo. 344; Swinford v. Teegarden, 159 Mo. 635; Stivers v. Horne, 62 Mo. 473; Benne v. Schnecko, 100 Mo. 250. (6) The expressed consideration of five hundred dollars in the deed from Zehnder to his wife was shown, by the evidence, to be entirely fictitious, and the deed was therefore void as to Zehnder's creditors. Seger v. Thomas, 107 Mo. 644; Taliaferro v. Evans, 160 Mo. 38. (7) Mrs. Zehnder knew that her husband purchased the fruit trees and that they were planted on the farm in controversy which was improved thereby; she is therefore estopped from denying Stark Brothers' title. Shea v. Shea, 154 Mo. 599. (8) According to Mrs. Zehnder, she ratified the contract made with her husband and Nickey even to taking the title in his name, and cannot now, in the face of his creditors, deny her husband's title. Matthews v. French, 194 Mo. 553. (9) Mrs. Zehnder's long acquiescence (fourteen years) in and enjoyment of the fruits of a transaction had on her behalf by her husband-agent is a ratification of the transaction. Barrett v. Davis, 104 Mo. 549. (10) Mrs. Zehnder swore that she ratified the contract made by her husband-agent in purchasing the land, and she accepted the fruit trees purchased by him, which were planted on this farm and she is therefore estopped to deny the obligations made by him in this regard. Bohlman v. Rossi, 73 Mo.App. 314; Hoppe v. Saylor, 53 Mo.App. 4. (11) Zehnder could not donate all of his labor to his wife and defeat his creditors. Johnson & Co. v. Christy, 79 Mo.App. 46. (12) The deeds of trust signed by Zehnder and his wife contained recitals that Zehnder was the owner in fee simple of the land in controversy and the wife is now estopped from asserting to the contrary. Whythe v. St. Louis, 153 Mo. 90; Bush v. Beirsol, 183 Mo. 500. (13) The last sheriff's deed made to the defendant, conveying the land in suit, was made by virtue of a sale under the judgment which the Supreme Court directed the circuit court to enter. Stark v. Zehnder, 204 Mo. 442.
E. R. Lentz for respondent.
(1) The undisputed testimony in this case, is, that Zehnder purchased the land in controversy, paying therefor the sum of eleven hundred dollars. That at the time he bought the land he paid two hundred dollars in cash, using his wife's money in making that payment. He also gave nine promissory notes for one hundred dollars each, representing the balance of the purchase money. The last of these notes matured in fifty-four months from the date thereof. That all of said notes were paid out of the sole and separate property of the plaintiff. That all the money which the plaintiff had, she received during the existence of the marital relation between her and her husband, by inheritance from her father and mother and by gifts from her brothers and sisters. That without her knowledge or consent the title to the said land was taken in the name of her husband, and thereafter the husband made a deed conveying the said land to his wife, in execution of the trust upon which he held the land. The money which plaintiff received and paid on this land, together with all income, increase and profits, was her separate property, free from the claims of her husband or his creditors. She did not transfer it to her husband by his use, occupancy or control thereof, but the same remained her separate property, unless by the terms of her assent in writing, full authority was given him. The property into which it was invested became trust property for her sole use and benefit, if she so elected. And this too whether she directed the purchase or not. R.S. 1909, sec. 8309; R.S. 1899, sec. 4340; R.S. 1889, sec. 6869; Grocer Co. v. Baffinger, 137 Mo. 373; Seay v. Hess, 123 Mo. 456; Winn v. Riley, 151 Mo. 66; Hurt v. Cook, 151 Mo. 426; Broughton v. Brand, 94 Mo. 174; McCoy v. Hyatt, 80 Mo. 136; Rogers v. Bank, 69 Mo. 562; Blake v. Meadows, 225 Mo. 1. (2) Both Mrs. and Mr. Zehnder testified that the money used in the purchase of this land in controversy, was the separate means and money of Mrs. Zehnder, that the money came to her by her inheritance from the estates of her father and mother, and by gift from her brothers and sisters, during the existence of the marital relations between them. In either event it was her separate estate. This evidence is not contradicted by direct testimony, nor by any legitimate inferences from the evidence, it is not opposed to the probabilities, nor in its nature surprising or suspicious. It is therefore conclusive, and the court when sitting as a trier of a fact is not at liberty to disregard it. Bank v. Weston, 172 N.Y. 250; Hull v. Littauer, 162 N.Y. 569; Littlefield v. Lawrence, 83 A.D. 327; Daniels v. Foster, 26 Wis. 686. (3) To constitute estoppel by conduct, five things must concur in order to work such estoppel: there must have been a false representation or a concealment of material facts; the representation must have been made with knowledge of the facts; the party to whom they were made must have been ignorant of the truth of the matter; it must have been made with the intention that the other party should act upon it; the other party must have been induced to act upon it. Bigelow on Estoppel (3 Ed.), 484; Blodgett v. Perry, 97 Mo. 273; Acton v. Dooley, 74 Mo. 74; Brammell v. Adams, 146 Mo. 82. There is no testimony that even Zehnder ever made any representations to Stark Bros. concerning the ownership of this land. The only representation which it is claimed or shown that Zehnder made was that contained in the several contracts, which he is alleged to have signed and that only with reference to the land described in those contracts, not the land in controversy. But even this is shown to be without the knowledge of the plaintiff. There is no pretense here that Mrs. Zehnder ever made any representations of any kind to Stark Bros. or that she ever concealed anything, or that she ever remained silent when it was her duty to speak or when she had an opportunity to speak.
Plaintiff sued under former section 650 (now 2535, R.S. 1909) to try, determine and adjudge title to the south one-half of the southeast quarter 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 twelve 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...
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