125 Mo. 450 | Mo. | 1894
I. If we add together the amounts paid by Wagner, to wit:
Dues paid on. the five shares of stock from September 7, 1883, to February 6, 1886, after the stock was assigned to his wife, we have........................................... $ 145.00
If to this we add the sum Wagner had previously paid in dues, we have.................................................. 25.50
$ 170.50
Then, if we add the sums paid on the land as rents to his wife between February 6, 1886, and May, 1891, we have...... 839.79
$1,010.29
If to this sum we add the amount for improvements made by Wagner, as admitted by his answer, to wit................ 575.00
we have.......................................... $1,585.29
In consequence of the vexatiously indefinite nature of Wagner’s testimony as to the amounts he expended in improvements on the property, and in consequence
In Seitz v. Mitchell, 94 U. S. 580, it was ruled that in the absence of evidence that the wife purchased the property with her own separate funds, the presumption is a violent one that the husband furnished the means of payment.
Tinder the operation of the present law, when the elaims of creditors intervene, it is not, too much to require that something more tangible be offered in the way of evidence of the wife’s being possessed of separate means, than to say, “my wife's money,'' or “my ivife had money of her own,” without showing the source whence her means were derived.
Now it is clear that the gift of the five shares of stock and the payment of dues thereon for several years can not stand against the claims of creditors, the'donor being an insolvent at the times of the gift and of the payment of the dues. And the motive which prompts the gift or voluntary conveyance is wholly immaterial. Such a conveyance is constructively fraudulent as to existing creditors, and can not withstand their attacks. Bohannon v. Coombs, 79 Mo. 305.
As the motive with which the gift or voluntary conveyance is made is immaterial, so must evidence be incompetent when endeavored to be elicited from the donor or grqntor that he “did not intend” to defraud his creditors. In such case-the alleged hidden motive
But the extraordinary claim is made by Wagner that, as, during all those years, from 1883 to 1891, at any one time he did not have $300 worth of personal property, therefore, he could bestow on whom he would and as he pleased, all he accumulated from time to time, so long as it did not at the time reach beyond the high water mark of $300. It must be confessed that if such a scheme could be made operative, the exemption provided for in execution laws would be greatly expanded and feel the sudden impetus of a wonderfully abnormal growth. Besides, this thing of exemption is a personal privilege, and can only be exercised when the officer calls with the writ or makes a levy, and then only for the benefit of the claimant and not for the benefit of another. Osborne v. Schutt, 67 Mo. 712.
Such claim must be made to avert a threatened seimre or levy, or to defeat a levy already made. There is no possibility of such claim being asserted, except under the conditions mentioned, and the claimant must be in possession of the property. Stotesbury v. Kirtland, 35 Mo. App. 148; Weinrich v. Koelling, 21 Mo. App. 133; State to use v. Koch, 47 Mo. App. 269; Alt v. Bank, 9 Mo. App. 91.
Again, the claim of the exemption when exercised, as-in this ease, could be exercised only on the property as aggregated at the time the claim is made; it could not be so operated as to create a series of nunc pro tunc exemptions, reaching back and each striking the growing fund in the nick of time, just before it attained the $300 limit. And then the claim is not made by the wife nor asserted in her answer, which alone would be fatal to the success of any supposed right on her part.
In the case in hand, just the two items of $575 for improvements and that of the payment of dues on the stock during the years between 1883 and 1886 would more than double the exemption allowed by the statute, to say nothing of the personal property owned by the husband and also by the wife, nearly or quite reaching in value $300, nor of the $329 that was to the credit of the husband about the first of January, 1890.
We come now to the point respecting the rent business. This we regard as a mere subterfuge and a very diaphanous one at that, employed. to cover up the means of the husband under the guise of a conveyance to the wife, and resembles in some of its incidents Miller’s case, 120 Mo. 466.
II. The effect of the execution sale and deed to plaintiff was to transfer to her all the right, title, interest and estate of Joseph P. Wagner in the lot in litigation, burdened, however, with the cloud cast upon that title by the fraudulent conveyance to his wife. With this cloud removed, as it ought to be, she can -read her title clear to whatever interest Wagner had in the property.
We have been cited to the case of Woodard v. Mastin, 106 Mo. loc. cit. 364, as announcing a different rule, and we are asked to follow that case, which declares that a plaintiff creditor who buys at an execution sale does not get the land he buys, but only the right to have his debt and interest satisfied out of the land, as well as his costs and attorney’s fees, etc., etc. We are constrained to disapprove the ruling in that case, not regarding it as sound. Under its teachings the only risk a fraudulent debtor would run would be, not the loss of the land
III. Defendant Mason in his answer does not allege that he is a “purchaser in good faith without notice.” See Holdsworth v. Shannon, 113 Mo. loc. cit. 524; Conn. Mut. Ins. Co. v. Smith, 117 Mo. loc. cit. 293.
If Mason is indeed a purchaser in good faith, then the only interest plaintiff acquired by reason of the execution sale, was the right of subrogation to the $1,250 note, and interest, less the payment made by Mason of $229.93, which went to satisfy the deed of trust.
In order that the lower court may conform its action to the foregoing views, we reverse the decree and remand the cause.