9 Mo. App. 91 | Mo. Ct. App. | 1880
delivered the opinion of the court.
The question here involved was, whether certain property, a grocer’s stock and fixtures, was the separate property of the wife, or the property of the husband, both of whom, as “plaintiffs', hero complain that the defendant levied on it as the property of the husband, when it belonged to the wife. To the plaintiffs’ evidence there was a demurrer, which the court sustained. It appeared that the husband was largely in debt, owing over $20,000, and having no means to pay his indebtedness. There was testimony to the effect that he gave his wife $250 or $300, and that with this amount,
The testimony of the husband and wife was the ouly testimony in the case. Apart from the legal question discussed below, a clear case of fraud is made out. The inference of fact to be drawn, and the only one warranted by the testimony, is that the property was put in the wife’s name with the design of covering.it up from the creditors of the husband. The inference of law arises from the fact that here was a voluntary disposition of property by one largely in debt, and with no means of paying his debts. Indeed, the contention of the plaintiff is, that though the amount of property levied on was in excess of the exemption, yet as the amount of the husband’s gift did not exceed the value of the debtor’s exemption, the property was at his disposal, and creditors could not interfere with the conveyance.
The question of the effect of a fraudulent conveyance of exempt property was considered in Kulage v. Schueler, 7 Mo. App. 250. The conclusion was there reached that where the property has, at the time of the transfer, the status of exempt property, there cannot be a conveyance of it — that is, in the fraud of creditors. But it was said in that case that there was there no question of goods first conveyed in fraud of creditors and afterwards claimed as exempt. In the suit at bar, that is the very cáse. There is no evidence tending to show that the stock of groceries was here exempt property, or claimed or regarded as such. It is merely an argument of counsel, that as there is evidence to the effect that the money given by the husband to the wife was all, or nearly all the debtor had,
Upon principle, it is not easy to see how exemption can be claimed in a case like the present, merely on the ground that the property conveyed was all the debtor had, and did not, in respect to amount, exceed the limit. On the same day the debtor may acquire new property and, if he is not compelled to indicate what is exempt but may convey and declare his exemption long afterwards, there can be no safety for creditors. G-ood'faith is always an element in exemptions. But, on the basis supposed, the debtor is allowed afterwards to shift his position' as the discovery of his frauds may require.
Whether the right of exemption is lost by a fraudulent
There was evidence tending to show that with the money given her by her husband the wife put in about $75 of her own, and under the act of 1875 (Laws 1875, p. 61), it is claimed that a part of the property levied on, at least, belonged to her. But, if she embarked means of her own in the business, these means cannot be separated from the fund. It appears that at the time of the levy the property was worth about $600. The question was as to the ownership of the property then. If, as appears, the wife was a party to the contrivance, there can be no separation of property thus mingled with that of her husband in fraud of his creditors. Franklin v. Gumersell, ante, p. 84. She affirmed the conveyance by making claim to all under the statute of 1855.
The judgment is affirmed.