Bucks v. Moore

36 Mo. App. 529 | Kan. Ct. App. | 1889

Smith, P. J.

— This was an action of attachment brought by the plaintiff against the defendant in the circuit court of Jasper county. The ground of the attachment was that the defendant had fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors.

The truth of this allegation was put in issue by a plea in abatement. At the trial the plaintiff, to maintain the issue, gave in evidence, (1) a warranty deed from C. A. Rump to defendant, conveying to him a certain lot in the city of Carthage ; (2) a like deed from defendant and wife to Ed. H. Ennis for said lot, dated May 10, 1883, and filed for record June 18, 1883 ; (3) also a deed for same property from said Ennis to Anna E. Moore, the date of the execution and filing for record, being the same as the preceding deed.

The consideration expressed in each of said last two deeds was one thousand dollars. It was admitted that the said Anna E. Moore mentioned in said last described deed was at the time of the execution thereof the wife of the defendant.

The court, upon the objection of the defendant, refused to permit the plaintiff to read in evidence a duly authenticated transcript of the record of the circuit court of Warren county, in the state of Kentucky, in a certain case between the parties who are the same as in this suit. This record discloses : (1) That on the second day of February, 1880, a judgment was rendered in favor of the plaintiff Bucks, against defendant herein for the sum of $812.26. (2) That the action was by attachment wherein one of the grounds alleged therefor was that “ defendant has no property in this state subject to execution, or not enough thereof to satisfy the plaintiff’s demand.” The ground of the attachment so alleged was not controverted by plea or answer. (3) That there was a garnishment branch of the attachment suit wherein a certain note attached in the hands of a garnishee, executed by him to a defendant, was claimed by one Ennis in an interplea interposed for that purpose.

Both the defendant in his answer, and the inter-pleader, alleged that said note had been assigned to the interpleader by the defendant in good faith, for value before maturity, and that upon the trial of the issues in said garnishment proceedings, the claim of the inter-pleader was denied and the said note adjudged properly attached.

The plaintiff then rested his case and the court thereupon instructed the jury that upon the pleadings and evidence the plaintiff was not entitled to maintain the attachment.

There was a verdict and judgment for defendant.

Plaintiff prosecutes his appeal here.

The plaintiff has assigned two errors here:

(1) That the circuit court erred in excluding proper evidence.

(2) That it was error to give said instruction.

I. The first ground of error assigned imposes upon us the duty of reviewing the action of the circuit court in excluding the record of the Kentucky court. At the outset I may state that I think this record should have been permitted to have been read in evidence.

It is now the well-settled rule of law in this state that a voluntary conveyance made by a debtor in embarrassed circumstances without means, outside of the par ticular property conveyed, for the satisfaction of his then existing debts, though made without any specific intent to defraud, is fraudulent in law as to all who were creditors at the time of the execution of the conveyance, and whose debt remains unpaid and incapable of collection in the ordinary course of proceedings. Walsh v. Ketchum, 84 Mo. 431; Porter v. McDonald, 31 Mo. 62; Patton v. Casey, 57 Mo. 118; Lionberger v. Baker, 88 Mo. 447; Payne v. Stanton, 59 Mo. 158.

The record referred to tended to establish in part the conditions required by the rule just stated, upon which the law predicates the conclusive presumption of fraud. Prior indebtedness is presumptive evidence of fraud. Loyd v. Fulton, 91 U. S. 479.

The said Kentucky record tended most strongly to show, (1) that the defendant was a debtor of the plaintiff at the time of the execution of said several conveyances, and (2) that defendant was then in embarrassed circumstances without means, outside of the particular property conveyed for the satisfaction of his then existing debts. In fact it showed that the defendant was in contemplation of law insolvent.

This record, in connection with evidence tending to •show that the said conveyances were without consideration and voluntary, would have been quite sufficient to have made out a prima facie case for the plaintiff. Upon such evidence the law would have presumed said conveyances were fraudulent, and that they were made to hinder and delay defendant’s creditors. Under such a showing by the evidence, said conveyances would have stood condemned as fraudulent, and the burden of proof would have been cast upon defendant to show circumstances which would have repelled the presumption of fraudulent intent. Walsh v. Ketchum, 84 Mo. supra,

It was error therefore for the circuit court to exclude the record of the Kentucky court from the evidence.

II. As to whether Or not the conveyance from Ennis to Mrs. Moore was voluntary and without consideration, is a question whose solution is not without difficulty. The consideration expressed in this deed is one thous- and dollars. As the presumption is always in favor of the forms of an instrument, the statement of the payment of the consideration in an instrument is prima facie evidence of the fact. Bump on Fraud. C on. 575.

The consideration expressed in a deed must be taken as the true and only consideration moving to the execution of it, unless there is evidence showing otherwise. Haywood’s Heirs v. Moore, 2 Humph. [Tenn.] 584; Clements v. Landrum, 26 Ga. 401. Inquiry, into the consideration upon which a transfer is founded is permissible. Bump on Fraud. Con. 219.

But the plaintiff offered no evidence to rebut the prima facie evidence of consideration expressed in said conveyance.

It may be that there was no valuable consideration passed from the grantees to the grantors for the said conveyances of the said real property, and if so, then they would all be of a voluntary character. The remark of the judge who delivered the opinion in Hoxie v. Price, 31 Wis. 82, that “on account of the great facility which the marriage relation offers for the commission of frauds, these transactions between husband and wife should be scrutinized to see that they are fair and honest and not mere contrivances resorted to for the purpose of placing the husband’s property beyond the reach of creditors, may apply to the facts of this case when developed. Such facts are not, however, presented by the record before us.

The plaintiff contends further that inasmuch as the conveyance in question was executed to defendant’s wife during coverture that the law presumes that the purchase money therein recited to have been paid was the money of defendant.

As the law stood before the passage of the act of 1865, now embodied in section 3395, Revised Statutes, if a married woman purchased real estate during coverture, if not shown to have been paid for with her separate means, the law presumed it to have been acquired with the means of her husband; Sloan v. Torrey, 78 Mo. 625. In Weil v. Simmons, 66 Mo. 620, Judge Sherwood, who delivered the opinion of the court, quotes approvingly the words used by Mr. Justice Strong in Seitz v. Mitchell, 94 U. S. 589, “that where the contest is between the wife and the creditors of the husband, mere evidence that she purchased the property during coverture is not sufficient to prove title ; that it must be satisfactorily shown that the property was paid for with her own separate funds, and that in the absence of such evidence the presumption is a violent one that the husband furnished the means of payment.” This ruling seems to have been based upon the authority of the Pennsylvania cases: Keeny v. Good, 21 Pa. St. 349; Walker v. Reamy, 36 Pa. St. 410.

And in the more recent case of McFerren v. Keemey, 22 Mo. App. 534, it was held by this court that notwithstanding the various acts of the legislature enabling the wife and disabling the husband with respect to the property of the former that the rule of evidence announced in Sloan v. Torrey, supra, remains unaffected.

Whatever I may think of the correctness and soundness of the ruling thus declared and adhered to, and especially since the act of March 16, 1883, Sess. Acts 1883, p. 113, I do not feel at liberty to now question the same.

It follows from these considerations that the plainiff had made out his prima facie case and should under proper directions from the court as to the evidence been permitted to go to the jury.

The judgment of the circuit court will be reversed and the cause remanded to be proceeded with in conformity with this opinion.

All concur.