215 Mo. 173 | Mo. | 1908
This is a suit in equity by which plaintiff seeks to have a certain deed, made by Sidney H. Wheelhouse and Clara M. Wheelhouse, conveying certain real estate in the city of St. Louis to Mabel V. Wheelhouse (Mickel), held and declared void and of no force or effect, and the title to said real estate de^ dared to be well vested in the plaintiff, and for other relief. .
Defendants George T. Mickel and Mabel Y. Mickel (sister of Sidney H. Wheelhouse) are husband and wife, and defendants Sidney H. Wheelhouse and Clara 'M. Wheelhouse are husband and wife, all residents of the State of Illinois; and defendant R. B. Lewis is tenant of house No. 4120 Westminster Place, in the city of St. Louis, Missouri, hereinafter described.
Continuing, the petition states that execution was issued upon said judgment in favor of said John S. Leahy and against said Sidney H. Wheelhouse on June 7, 1904, directed to the sheriff of the city of St. Louis, and that the sheriff levied upon and seized all of the right, title and interest of the said Sidney H. Wheelhouse in and to the said real estate, and, after advertising the same in accordance with law, sold at public auction, on July 1, 1904, all the right, title, interest claim, estate and property of said Sidney H. Wheelhouse in and to said real estate, to the plaintiff, for the sum of one hundred and twenty-five dollars, he being the highest and best bidder, and delivered to him a deed dated July 1, 1904.
“Plaintiff further avers that while the said Sidney H. Wheelhouse was so seized and possessed of the above-described real estate, and on, to-wit, May 8, 1902, he pretended to convey to Mabel Y. Wheelhouse, then of the city of St. Louis, all of his right, title and interest in and to the said property for the consideration of one dollar, but that the said pretended conveyance was not recorded until on, to-wit, June 26, 1908, on which date the same was recorded in the recorder’s office of the city of St. Louis, in book 1720, at page 202; that the said conveyance was purposely kept off of record by connivance and consent, and with the intent of the said Mabel Y. Wheelhouse and Sidney H. Wheelhouse of giving to the said Sidney H. Wheelhouse the appearance of owning said property, among those with whom he had business dealings and transactions; that the said conveyance was made by the said Sidney JE. Wheelhouse to the said Mabel Y. Wheelhouse without any consideration passing from the said Mabel Y. IVheelhouse to the said Sidney H. Wheelhouse, or any consideration therefor whatever, and with the purpose
“Plaintiff further avers that the said Mabel Y. Wheelhouse is the sister of the said Sidney H. Wheelhouse, and that after the conveyance to her of the said real estate she married her co-defendant herein, George T. Mickel.
“Plaintiff further avers that the said conveyance to the said Mabel V. Wheelhouse (now Mickel) was and is fraudulent and void as against the rights of the plaintiff herein; that the said conveyance upon its face appears to be a valid conveyance and that only by the introduction of testimony showing the character of the same can the said conveyance be proven and shown to be absolutely void and of no legal effect, and that by reason of its appearance of record as a valid conveyance and instrument it casts a cloud upon the title of the plaintiff to the said real estate.
“That by reason of the premises plaintiff has no adequate remedy at law to enable him to remove the said cloud upon the said title and to recover the possession of the said property.”
Plaintiff prays that the deed dated May 8, 1902, made by the said Sidney H. Wheelhouse and Clara H. Wheelhouse to Mabel Y. Wheelhouse (now Mickel), be held and declared utterly void and of no force or effect, and that the title to the said real estate be adjudged and declared to be well vested in the plaintiff by virtue of the deed made by Sidney H. Wheelhouse, by and through the sheriff of the city of St. Louis, to the plaintiff, duly recorded in the recorder’s office of ■ the city of St. Louis, in book 1793, at. page 1, unaffected by the alleged or claimed title of the said Mabel Y. Wheelhouse (now Mickel); and prays for judgment against defendant R. B. Lewis for the reasonable value of the use and occupation of the said premises from the first day of July, 1904, to the date of the trial of this cause, and that said R. B. Lewis be required to surrender up to the plaintiff the possession of said premises, or acknowledge plaintiff as landlord thereof
The defendants, Mabel V. Michel, George T. Michel, Sidney H. Wheelhonse and Clara M. Wheelhonse, by their answer admit that said Sidney H. Wheelhouse, by deed dated May 8, 1902, and recorded June 26, 1903, did convey to Mabel Y. Michel, then Mabel V. Wheelhouse, the real estate described in plaintiff’s petition, but deny that said conveyance was hept off of record by connivance or consent, and with the intent, of either said Mable V. Michel or said Sidney H. Wheelhouse, of giving to the latter the appearance of owning said real estate among those with whom he had business dealings; deny that there was no consideration for said conveyance, and deny that said conveyance was made for the purpose and intent by either said Sidney H. Wheelhouse or said Mabel Y. Michel of hindering, delaying, defrauding or cheating the creditors of said (Sidney H. Wheelhouse. Further answering, the defendants state that said Sidney H. Wheelhouse, at the time of said conveyance, was and still is the head of a family, and owned and occupied and claimed as his homestead the real estate set out and described in plaintiff’s petition, and that said real estate was his homestead within the meaning of section 3616 of the Revised Statutes of Missouri, 1899.
For reply, plaintiff denies each and every allegation of new matter in the defendants’ answer contained.
The record discloses that on May 8, 1902, Sidney H. Wheelhouse and his wife, Clara, executed a warranty deed to the former’s sister, Mabel Y. Wheelhouse, who was subsequently married to George T. Michel, conveying to her the premises in the city of St. Louis known as 4120 Westminster' Place, for a consideration of one dollar, subject to incumbrance on the property aggregating $4,700. While the deed was
On February 14, 1903, Wheelhouse entered into a contract with one Kemp and B. P. Y. Ritter, the object and purpose of which was the forming of a corporation to be known as the St. Louis Autolectric Company, with a capital stock of $100,000, two of the provisions of which said contract were as follows:
‘ ‘ Seventh. That the said E. P. Y. Ritter is at once to negotiate a note for the sum of $3,000, made by the 'three parties hereto, and is to use the proceeds thereof as may be necessary in the interest of the company.
“Tenth. S. H. Wheelhouse, so long as the company has any outstanding bills payable, agrees that the property, No. 4120 Westminster Place, now in his name and unincumbered except for the sum of $4,700, shall not be transferred or incumbered by him without •the consent of said E. P. Y. Ritter.”
“$3,000. St. Louis, Mo., June 19, 1903.
“Three months after date we promise to pay to the order of the Fourth National Bank of St. Louis, three thousand dollars, for value received, at the Fourth National Bank of St. Louis, with interest from maturity at the rate of 8 per cent, per artmrm-
“S. H. "Wheelhouse, E. P. Y. Ritter, St. Louis. Autolectric Co., E. R. Kemp.”
"When said note became due, it was renewed by ■another note for the same amount on September 22, 1903, signed by the St. Louis Autolectric Co., by S. H. Wheelhouse, president,- E. R. Kemp- and E. P. V. Ritter. This indebtedness was taken care of by another note on November 24,1903, signed by the same parties, upon which note, some time after maturity, E. P. Y. Ritter paid one thousand dollars.
Subsequently, on the 26th day of February, 1904, John S. Leahy, as indorsee of this last note, filed suit against S. II. Wheelhouse in the circuit court of the city of St. Louis, and judgment was rendered in favor of Leahy and against Wheelhouse for $2,0-40, together with interest and costs of suit. An execution was issued upon said judgment and a levy made upon Wheelhouse’s interest in the above-described property. A sale was had under the execution, and the plaintiff herein, E. Spencer Clark, became the purchaser of all the right, title and interest of S. H. Wheelhouse in and to said property, for the sum of $125, the sheriff’s deed conveying the interests of Wheelhouse in said property to Clark being recorded on the 18th day of July, 1904. It appears that at said sale Mr. T. P. Young, representing Mabel Y. Wheelhouse (Mrs. Mickel), announced that the property belonged to Mrs. Mickel, and that whoever purchased it would not get a good title. It also appears from the evidence that Clark purchased
The testimony of S. H. Wheelhouse shows that at the time he executed the deed to his sister he contemplated changing his business location from St. Louis to Dallas, Texas. He could not state positively that Mr. Ritter knew the details of the transfer, but that Ritter knew that the property had been placed in his sister’s hands and that she would execute any deed to the property in the event it was sold while he was away. The property was at the time being offered for sale by the Nichols-Ritter Company. He testified that he had not seen the deed to his sister from the-time it was executed until the date of his testimony; that he did not know why it was not recorded until June 30, 1903, but that his understanding was that it was not recorded, anticipating* that the property might be sold. The day before the deed was made he had an accounting with his sister, when it was ascertained that he owed her about $1,400 for moneys advanced, and she thereupon advanced him about $300 more to pay some debts which he owed, and in order to secure this $1,700 he made her this deed, which was regarded by them as a mortgage. The property was valued at $7,000, and in the event it was sold while he was away, whatever remained of the price, after the payment of' the incumbrances amounting to $4,70-0' and $1,700' which -he owed his sister, was to be forwarded to him. He further testified that there was no agreement between him and his sister about keeping the deed from the record, that after it was recorded he received a letter from her stating that fact, and that he so informed Mr. Ritter and, perhaps, showed him that letter.
The testimony of Mabel Y. Mickel, formerly Wheelhouse, was that she kept ah incomplete record of the various loans made by her to her brother dur
Frank J. Frick, bookkeeper for the Gerhart Real Estate Company, and notary public, testified that he •drew the deed at the suggestion of Mr. Wheelhouse, who said he wanted it in favor of his sister to whom he owed some money; that Wheelhouse was not consulted with reference to the property after this conveyance was made, and that Mrs. Mickel was the person consulted; that some time after the deed was made and left with the real estate company there was an offer of $6,000' for the house; that Wheelhouse came into the office and witness spoke to him about this offer, whereupon Wheelhouse said, “You will have to communicate with my sister with reference to that — shenow owns the property.” He further testified that the house had been rented to parties in 1904, and that Mabel Y. Mickel and Clara M. Wheelhouse opened an account on the books of the real estate company for the first time in May, 1904, which account was closed July 13, 1904, and another account opened in
E. P. V. Ritter testified that he learned from Mr. Wheelhouse, before the latter went to Texas, that he left a deed in the hands of the Gerhart Real Estate Company for the purpose of facilitating* a sale of the property; that Wheelhouse said it was a quitclaim deed, and asked him to sell the property; that at the time he signed the joint note with Wheelhouse he relied upon the credit of the latter as owner of the property in question, and that otherwise he would not have signed it. He further stated that the Autolectric Company, to promote which $3,000' had been borrowed on said note, proved a failure and that neither he nor Wheelhouse had ever got back any of the money invested therein.
After hearing all the evidence, the court rendered judgment in favor of the defendants, and against plaintiff for costs, from which judgment plaintiff appealed.
The first insistence of the plaintiff is that the withholding by Mrs. Mickel of the deed of Muy 8, 1902, from record, gave to Wheelhouse the indicia of •ownership of the property until Ritter entered into the contract of February 14, 1903, and discounted the note of June 19', 1903, with the bank; that upon that evidence of Wheelhouse’s solvency, Ritter was led to enter into the contract, and that, under such circumstances, the deed, whether construed as an absolute ■conveyance or a mortgage, should in equity be postponed to the rights of the execution purchaser.
The mere withholding a deed to, or mortgage upon, land from record will not ipso facto vitiate the instrument. It is only when the withholding the instrument from record gives the grantor, upon the faith ■of the ownership by him of the property conveyed,
Before plaintiff would be entitled to have the deed to Mabel V. Wheelhouse (Mickel) set aside upon the ground of her failure to place it upon record, it devolved upon him to prove that because of such failure a fictitious credit was given to Wheelhouse, and upon which creditors relied to their damage. [Gentry v. Field, supra; Bank v. Newkirk, 144 Mo. 472; Wall v. Beedy, 161 Mo. 625.] Leahy did not acquire his interest in the property until June 7,1904, when bis judgment became a lien thereon (if the property was then subject to sale under execution), while said deed was recorded in the proper office in the city of St. Louis, on June 26, 1903, long before Leahy acquired his interest in the property. Besides, Clark, the plaintiff, was notified at the execution sale that Mrs. Mickel claimed' title to the property, and in the absence of evidence that the 'Fourth National Bank discounted the note upon the faith of Wheelhouse’s ownership of the property, or that plaintiff or Kemp signed the note relying upon Wheelhouse’s credit, or that some of them sustained damage by so doing, plaintiff is in no position to complain of the failure to record the deed. It is not, however, claimed by counsel for plaintiff that' either the bank or Kemp1 was misled or damaged by reason of the failure of Mrs. Mickel to record the deed. Plaintiff rests his right to recover upon the ground that Ritter, as claimed, was deceived
Ritter testified upon his cross-examination that he knew that Wheelhouse, before going away to Texas, had executed a deed to the property in question to his sister, and that this conveyance was at the office of Gerhart & Co. It would, therefore, seem impossible that Ritter, with knowledge of this fact, could have given WTieelhouse credit upon the faith of his ownership- of the property. He testified that he was never told that the deed had been revoked, but that he had forgotten about it at the time of the agreement on February 14, 1903. This, however, makes no difference, for notice, once fixed upon him, was continuous from that time on. There is no contention that Wheelhouse ever executed any other deed to the property than the one to his sister, and there can be no question that said deed was the one of which he had notice long before entering into the contract with Wheelhouse and.Kemp. Actual notice to Ritter of the existence of said deed was, as to him, just as effective as if the deed had been duly recorded at the time. In State Bank of St. Louis v. Frame, 112 Mo. 502, the plaintiff and defendant both claimed throug'h the same grantor, plaintiff under an unrecorded conveyance, and defendant under a subsequent conveyance by the same grantor. The plaintiff contended that the defendant had actual notice of the conveyance, and the court held this to be a good defense. Therefore, unless the deed made by Wheelhouse was with the fraudulent intention of contracting further debts, and to avoid the payment of them, it was not fraudulent. Such fraudulent intention may be show by proof, when available, of the insolvency of the grantor at the time of the conveyance, or though solvent that he was rendered insolvent by reason of the conveyance. There
While the consideration recited in the deed was one dollar, the evidence shows that Wheelhouse was indebted to his sister, the grantee therein named, in the sum of $1,700 and that this was the real consideration for the deed.
There is no proof that Mrs. Mickel knew at the time of the conveyance that Wheelhouse contemplated going into the Autolectric business, or that she knew or had reason to believe that the conveyance would render him insolvent, as it certainly did not. Moreover, there was no actual fraud or fraudulent intent shown on the part of Wheelhouse at the time of the execution of the deed to his sister, either as to existing or future indebtedness, as the law requires to set aside even a voluntary conveyance, which this was not. [Payne v. Stanton, 59 Mo. 158; Lander v. Ziehr, 150 Mo. 403; Krueger v. Vorhauer, 164 Mo. 156; Bank v. Simpson, 152 Mo. 638; Johnson v. Murphy, 180 Mo. 597.]
Our conclusion is that the judgment is for the right party, and should be affirmed.
