Massey v. McCoy

79 Mo. App. 169 | Mo. Ct. App. | 1899

BOND, J.

In 1889 Mrs. Epperson gave to plaintiff her note for $136.75, with ten per cent interest thereon, which was afterwards assigned to the Greene County Bank, which recovered judgment thereon in 1897. The defendant was garnished upon an execution issued on this judgment. The issues joined in the garnishment proceedings were submitted to the court sitting as a jury and defendant was discharged. An appeal from that judgment was affirmed in this court for the reason that the issues in question could not be determined in a garnishment proceeding. (See opinion on file.) 74 Mo. App. 10.

In 1892 Mrs. Epperson, who was a widow of great age, infirm in health, and childless, contracted with defendant for her support and maintenance during the remainder of her life and decent burial thereafter in consideration of the transfer of all her property to him. In execution of this agreement she transferred to him a lot of ground in the city of Springfield estimated to be worth $1,000, and two notes for $500 each. It turned out that she was the owner of one-half only of the lot, and upon a partition thereof defendant received as the net portion of the proceeds coming to him $132.75, and that he received in full settlement of the notes ■ and interest $820. She continued to live with him until her death in 1898, whereafter she was suitably buried at his expense. The judgment recovered by the bank was reassigned to plaintiff, who brings the present action as a creditor of Mrs. Epperson to reach the property conveyed to defendant. She being insolvent no administration was had upon her estate. Upon a consideration of the facts there was a decree in plaintiff’s favor, from which defendant appealed.

Res adjudicata. It is insisted by appellant that the determination of the garnishment proceedings was an adjudication of the questions involved in the present action. We can not concur in this view. The judgment of the lower court in the garnishment proceeding was affirmed, first, because the conveyance of the land to defendant could not be questioned therein; and secondly, because, as shown by that record, no part of the notes had been paid to the garnishee and the maker had not been garnished. No other questions were passed on by this court. (See opinion on file.) It is perfectly evident from these rulings that the merits of the present action were not passed on in the former appeal. Sherer v. Akers, 74 Mo. App. 217.

It is next insisted by appellant that the contract between Mrs. Epperson and defendant was valid and not obnoxious to section 5169 of the Revised Statutes of 1889, pertaining to fraudulent conveyances. If the question were Tes mtegra we should be loathe to hold that a contract upon a valuable consideration fully executed in good faith by both parties whereby about $1,000 was paid in consideration of the support, maintenance and keep of an aged person for six years during three of which, according to the facts in the record, she was bed-ridden, was not free from all taint of fraud against the rights of the creditors of the promisee as defined by the statutes on the subject of fraudulent conveyances. The rule on this subject has been recently announced by our supreme court in the following language: “With respect to property which may be subjected to the payment of the debts of a debtor, we fully agree to the rule announced in Wait on Fraudulent Conveyances and Creditors’ Bills [2 Ed.], section 211; Crane v. Stickles, 15 Vt. 252; Stanley v. Robbins, 36 Vt. 432; Woodward v. Wyman, 53 Vt. 647, that is, that he can not convey bis property which is subject to the payment of bis debts in consideration of an obligation for support for life, or any considerable length of time, unless be retain whatever is necessary to satisfy bis creditors, as the law will not allow any person having means to make provision for himself and family during life at the expense of bis creditors. To do so would be to encourage fraud, by permitting a debtor, possessed of an unlimited amount of property, to place it beyond the reach of bis creditors by conveying it, for and in consideration of the support of himself and wife or any member of bis family, for and during the life of any one or all of them.” Bank v. Guthrey, 127 Mo. loc. cit. 193. With reference to the Vermont cases in support of the text approved in the above paragraph, it may be well to note that the rule is somewhat different now in that state. Kelsey v. Kelley, 63 Vt. 41. However this may be, the facts in the present record bring the transaction between the parties clearly within the doctrine announced by our own supreme court. It is therefore our duty to apply that rule and to bold that the conveyance by Mrs. Epperson of her entire estate in consideration of her future support, is invalid as against the claims of a pre-existing creditor.

It is lastly insisted by appellant tbat plaintiff is estopped by reason of bis knowledge and participancy in the transaction between Mrs. Epperson and the defendant. We are unable to find tbat this contention is supported by the weight of the evidence. It is true plaintiff was Mrs. Epperson’s attorney, and as such appears to have prepared the deed executed by her to defendant conveying the town lot, but the recited condition in tbat deed is $1,000, and there is nothing in the record showing tbat plaintiff was aware tbat this was not the real consideration. As to the transfer of the notes, it appears from plaintiff’s testimony that when Mrs. Epperson took them from his custody she told him that upon their collection it was her intention to pay all her indebtedness. This was the view of the fact taken by the learned special judge, and we think his conclusion thereon was supported by the preponderance of the evidence in the record. The result is the judgment herein is affirmed.

All concur.