Lionberger v. Baker

88 Mo. 447 | Mo. | 1885

Brack, J.

This is a suit to set aside a deed made by John Baker to his daughter, Jessie Gr. L. Baker, now Mrs. Antisdel, dated July 19, 1878, conveying to her a one thirty-sixth of certain real estate in the city of St. Louis. The Fourth National Bank recovered judgment against John Baker in January, 1879, for over five thousand dollars upon notes dated in December, 1876, and June, 1877. John D. Davis purchased the judgment and under an. execution issued thereon became the purchaser of the property in the name of the plaintiff. The deed from Baker to his daughter, it is alleged, was voluntary, and, to her knowledge, made to defraud the creditors of John Balter. It will be seen the debts due to the bank were created anterior to the date of the deed which plaintiff seeks to set aside. It is shown that Mr. Baker had at that time a large amount of property in the city of St. Louis, which some of the witnesses estimated to be of the value all in all, as high as- $156,000. He was then in debt to the amount of $80,000 or $90,000. . These debts were secured by deeds of trust on his property. The payment of some of the debts had been extended from time to time. Mr. Baker had but little, if any, property, other than that here in question which was not thus incumbered. Taxes on the property were not all paid. There can be no doubt but he was then in -embarrassed circumstances and nothing but the best of management and good credit would save him from ruin. Judgments and foreclosure sales followed in rapid succession. We disregard the statement testified to by the witness, Simmons, and still can come to no other conclusion than this, that he was at the date of the deed to the daughter in straightened circumstances. If a debtor is in embarrassed circumstances and makes a voluntary conveyance, and is afterwards unable to meet his debts owing at the time the conveyance -was made, in the ordinary course prescribed by law, such conveyance is void as to those debts. Potter v. McDowell, 31 Mo. 62 ; Patton v. Casey, 57 Mo. 118 ; Payne v. Stanton, 59 Mo. 158.

1. But the further question then is ; was this deed voluntary, or was it upon a valuable consideration? The property thereby conveyed, though subject to the life estate of Mrs. Jemima Lindell, was of a" value of not less than $7,000 and not greater than $15,000; the latter estimate is nearer the real value. The deed was made for the alleged consideration of one hundred dollars. Mr. Baker had for some time thought of giving this property to his daughter. In July, 1878, his wife-and daughter were at Oconomowoc, Wisconsin, for the summer. The deed was sent to the wife for her signature, and by her signed and returned to St. Louis. It was then signed by Mr. Baker and recorded, when he took it to his daughter and was paid by her therefor, he states, one hundred dollars in a few minutes after his arrival. The daughter was but twenty years of age, was then living in affluence, and as might well be expected knew but little of the property or pf its value. There had been some previous talk about selling the property to-her for that amount, but the evidence in that behalf is-not definite. Mr. Baker says the daughter paid him the-one hundred dollars in one bill, and she says she paid it in bills and silver. They agree that the money was given to her by her mother. It appears Mr. Baker had years previous agreed with his wife to allow her $2,000' annually to do with as she pleased, but at the date of this deed he owed her $8,000 on that account. Tie had sent his wife money while in Wisconsin to defray her expenses there, and the conclusion is irresistible that the one hundred dollars was given by the mother to the-daughter out of that, and then by the daughter to the father, so that he really paid himself out of his own money. Besides this the alleged consideration of one-hundred dollars is wholly disproportionate to, the value-of the property, and if in fact paid at all, was thus paid to give color to the transaction, and is not a valuable-consideration. Kuykendall v. McDonald, 15 Mo. 416 ; Fisher v. Lewis, 69 Mo. 632; Bump on Fraud. Con. [3 Ed.] 209. The deed must be held to be a voluntary conveyance without a valuable consideration.

2. The further contention is that this deed was made valid by matters ex post facto. The defendant James F. Antisdel and the daughter of John Baker to-whom the deed was made, were married in February, 1881, and had been engaged for six months prior thereto, during which time Mr. Antisdel had the deed in’ his possession. He did not have any actual knowledge of this suit until two or three days before the marriage, though process had been served on the other defendants previous to that, and a statutory Ms pendens was filed in December, 1880. Marriage is doubtless a valuable as distinguished from a good consideration. A purchaser from a fraudulent grantee for a valuable consideration without notice takes a good title. In 2 Sug. on Yen. ' (Am. notes by Perkins) 469, it is said: “ So if a person is induced to marry a voluntary grantee on account of such provision, the deed, though void in its creation as to purchasers, will no longer remain voluntary; but it becomes unimpeachable only from the date of the matter ex post facto, and it must be presumed that the parties did act upon the pro'vision.” Again, “Wherever there is a voluntary conveyance which is not actually fraudulent in the hands of a grantee, if a subsequent marriage takes place, and the conveyance form any inducement to the marriage, that is sufficient to render the conveyance valid, not only as against a subsequent purchaser, but also as against the creditors of the grantor.” Wood v. Jackson, 8 Wend. 33. Other cases of a like import are cited by counsel for appellants.

Here the creditor procured, his judgment, the property was sold and purchased by the plaintiff, and this suit was commenced before the marriage was consummated. If Mr. Antisdel is to be regarded in the light of a subsequent purchaser for value, still he became such after the rights of the plaintiff had attached as well as pending the litigation and, therefore, subject to the result of the suit. The executory agreement — the engagement — does not place him in the attitude of a purchaser for value. For these reasons, if for no other, the marriage constitutes no defence to this action.

3. Where a debtor conveys his land in fraud of creditors, the creditor may institute his suit to set aside the fraudulent deed and subject the land to the payment of the debt by thus first ascertaining the interest of the debtor therein, or he may sell the land under execution before the ascertainment of the debtor’s interest, and then set aside the fraudulent deed. The purchaser at the execution sale will occupy the same position as if he were the creditor. It is to be regretted that the former course is not more frequently pursued, and thereby avoid the sacrifice of property and speculation attending such execution sales, of which this case is no exception ; but the right of the creditor to pursue either course is well established in this state. Bobb v. Woodward, 50 Mo. 95; Ryland v. Callison, 54 Mo. 513 ; Zoll v. Soper, 75 Mo. 460.

The judgment must be affirmed and it is so ordered.

All concur.