Bartels v. Kinnenger, 144 Mo. 370

Bartels v. Kinnenger

144 Mo. 370 | Mo. | 1898

Burgess, J.

This is a proceeding in equity by the plaintiff against John E. Kinnenger and Alvina Kinnenger, his wife, and A. Q-. Landgraf, to have set aside certain conveyances made by John E. Kinnengerto the other defendants, and to subject the property described in the petition, to sale under execution under a judgment held by plaintiff against John E. Kinnenger. The property conveyed to the defendant Alvina Kinnenger and Landgraf were separate and distinct tracts; the tract conveyed to Alvina Kinnenger being the homestead of John E. Kinnenger. The trial in the *373court below resulted iu a judgment and decree in favor of plaintiff; and against John E. Kinnenger and Alvina Kinnenger setting aside the deed from John to her, and in favor of Landgraf. John E. Kinnenger and Alvina Kinnenger appealed. No appeal was taken from the judgment in favor of Landgraf.

JohnE. Kinnenger acquired the property involved in this appeal by deed from Aaron Abernathy and wife on March 17, 1890, and filed the deed for record in the recorder’s office of the county in which it lies on the sixth day of May, 1890. Kinnenger and wife occupied the property as their homestead from the time of this purchase, and were so occupying it at the time of the institution of this suit. On the twenty-eighth day of December, 1893, John E. Kinnenger conveyed this property to his wife Alvina, but there was no consideration passed for the deed which was, however, properly recorded on the first day of January, 1894. On January 1, 1890, and for a long time before that time JohnE. Kinnenger was the agent of Ms mother, the plaintiff, in loaning her money, and collecting interest thereon. On that day he had on hand the sum of $2,533, which he received from ber former agent, T. B. Whitledge. He continued to be his mother’s agent until September 2, 1893°, when they had a settlement and plaintiff ascertained that he had used of her money the sum of $1,340 or $1,342 and being unable to pay the same he executed to her his note for that sum, upon which judgment was rendered in her favor for the sum of $1,413.57, in the circuit court of Oape Girardeau county at the May term, 1894. Execution was issued on this judgment July 21, 1894, which was returned unsatisfied, no property being found whereon to levy the same.

Defendants contend that the petition does not state facts sufficient to authorize the intervention of a court *374of equity, for the reaso n that it discloses upon its face that at the time that John E. Kinnenger acquired the property in question and occupied it as his homestead he was not indebted to plaintiff in any su'm off money whatever, but on the other hand he toas her agent, and that that relationship continued to exist until this settlement on September 2, 1893, when it was dissolved; that the relationship of principal and agent, and of debtor and creditor can not exist at the same time, between the same parties, and as to the same subject-matter, and as the deed from Abernathy to John E. for the homestead was recorded in the recorder’s office of the proper county long before that time, that the homestead is not subject to levy and sale under execution for the payment of that debt.

The record shows that in the' settlement between John E. Kinnenger and his mother of September 2, 1893, he charged himself with interest on the money'of his mother from

January 1, 1890, to January 1, 1891.................$178.00

January 1, 1891, to January 1, 1892..................... 178.00

Interest for one year and eight months on $2,600........ 346.00

And plaintiff contends that by charging himself with interest on this large sum of money from January 1, 1890, defendant admits that he owed his mother this money prior to filing for record his deed to the property, which he now contends is his homestead.

If John E. Kinnenger acquired the property in question for a homestead, was occupying it as such, and had placed his deed thereto upon record before the debt was contracted or the cause of action accrued upon which the judgment was rendered in favor of plaintiff against him, it was not subject to execution issued under that judgment, and if exempt from execution no fraud was perpetrated upon plaintiff by reason of the conveyance of it by him to his wife Alvina, *375although the deed was without consideration. Davis v. Land, 88 Mo.' 436. “Creditors have no interest in such property, as it can not be subjected to the payment of their debts by proceeding in equity any more than it can be seized under attachment or execution.” Bank of Versailles v. Guthrey, 127 Mo. 189; Kendall v. Powers, 96 Mo. 142; Holland v. Kreider, 86 Mo. 59. But if subject to execution the deed from Kinnenger to his wife is fraudulent and void as against this plaintiff, because without consideration and merely a voluntary conveyance. The question then is as to what time plaintiffs’ cause of action or- the debt upon which the judgment was rendered accrued, whether before or after the acquisition of the homestead"!

As a general rule when money is placed in the hands of an agent to loan for a principal the act of the agent in handling the money is the act of the principal and as to such money the relation of debtor can not exist, and only commences on the termination of the agency, but where the agent violates his instructions, as in this case, which were to loan the money on real estate, and instead of so doing converts it to his own use, a different rule prevails, and his principal .may at once sue and recover it from him without demand. In Farrand v. Hurlbut, 7 Minn. 477, the plaintiff placed a sum of money in the hands of the defendant to be loaned or invested by him in her name. He loaned it in his own name and for his own use and benefit, and it was held that such act amounted to a conversion, and the plaintiff could maintain action for the money and damages from the time of the conversion without any demand. In Mechem on Agency, section 477, it is said: “The result of the authorities may be said to be, that if the agent parts with the property in anyway, or for any purpose not authorized, he is liable for a conversion.”

*376The evidence showed that John E. Kinnenger had converted a part of the money intrusted to him by his mother to be loaned out for her upon real estate security to his own use, prior to the eighth day of January, 1890, the time that his deed to his homestead was recorded. Upon such conversion a cause of action at once accrued to plaintiff against him therefor, and existed at the time of the acquisition of such homestead. Moreover, Kinnenger tacitly admitted by charging himself, in the settlement between himself and his mother, with interest amounting to $178, from January 1, 1890, to January 1, 1891, that he had converted about all of the money to his own use before the eighth day of January, 1890. The property is therefore not exempt from execution which may be issued on said judgment. The result would not be changed by reason of the fact that plaintiff and John E. Kinnenger thereafter had a settlement and she took his note for the amount then found to be due her, and that the judgment was thereafter rendered upon that note. Pratt v. Eaton, 65 Mo. 157.

It follows from what has been said that the judgment must be affirmed, and it is so ordered.

Gantt, P. J., and Sherwood, J., concur.