234 Mo. 171 | Mo. | 1911
— On March 20, 1905, James R. Moorehead, in the circuit court of Jackson county, recovered judgment for $547.03 against appellant Otho M. Gaffin. Under said judgment execution issued directed to the sheriff of Lafayette county, and was by him levied upon the interest of said appellant in a tract of land containing twelve and a half acres which, together with improvements, was worth- from $5000 to $7500, but mortgaged for $5250. At the sheriff’s sale respondent, being Gaffin’s creditor to the amount of $6253.19, bought the property for $625, and received a deed from the sheriff.
This suit was brought by respondent to set aside a conveyance of this property made by appellant Gaffin to his wife on November 11, 1904, on the ground that the same was made to defraud creditors. At the date of such conveyance appellant Gaffin was indebted to various creditors for about $10,000', and was then
The appellants pleaded in their answers, and introduced evidence tending to prove, the following facts: That on November 11, 1904, appellant Otho M. Gaffin and his wife, Laura, on account of domestic difficulties, agreed to separate, she to assume the care and support of their children, five in number; that the transfer to her was in consideration of this agreement, and for the sole purpose of providing for the wife and children; that the appellant Laura had no intention to assist her husband to defraud his creditors; that by the terms of such conveyance she, Laura, assumed and promised to pay the indebtedness secured by mortgage on the land.
The appellant Laura testifies that she knew of the debts owing by her husband at the time of the conveyance. It further appears from the testimony of appellants that husband and wife were separated for six weeks only, after which time they became reconciled, and lived together; also that Mrs. Gaffin had at some ' previous time, not specified, let her husband have $200 which he used in his business. When asked whether he ever repaid this, she said: “No more than a living.” All the children were working except the youngest who was at school. Neither answer pleaded this alleged indebtedness of $200.
The decree of court found that the conveyance from husband to wife was made in fraud of creditors, and set the same aside. There is no assignment of errors.
Appellants assert: 1. That if the debt is honest, and the security not excessive, the intention of the grantor cannot affect the rights of the grantee as against creditors. 2. That a debtor may prefer one creditor to another. 3. That the respondent was a mere general creditor.
It is contended that there is no evidence to support the finding of the court. Whether a conveyance to a wife, who is living apart from her husband, in consideration of her undertaking to support their children, is good as against creditors, we need not decide, because the testimony shows that, in view of the- speedy reconciliation which followed the alleged separation, there is practically no such situation presented here. In view of the pleadings, the court was justified in rejecting the claim that the alleged debt from the husband to the wife constituted a consideration. But even if it were a valid debt, it was entirely disproportionate to the value of the equity in the property.
The evidence is sufficient to support the finding of the court that both husband and wife had the intent and purpose to defraud his creditors. Upon such finding, the deed should be set aside, regardless of the question of consideration.
The judgment is affirmed.
