114 Mo. 360 | Mo. | 1893
I. The motion for a decree on the pleadings should have prevailed; Mrs. Free and her husband in their answer “admit the indebtedness.” Now, the only indebtedness charged in the petition is that which is alleged therein to have been due on the third day of November, 1884; for the petition in reference to the deed made on that date, and to the indebtedness of Mrs. Wing states, “said debt and money owing him by said Martha M. Wing;” * * * “said ■debt then owing him by,” etc. The admission of the debt and likewise of its date must, therefore, be regarded as standing confessed on the face of the pleadings notwithstanding the ambiguous phraseology in the prefatory portion of the answer.
The central idea of code pleading is that an answer should not be evasive, but should meet the allegations of the petition fairly and squarely, thus presenting sharply defined issues for the triers of the facts to pass upon. Revised Statutes, 1889, sec. 2049, On a former occasion this court denounced the method here employed as a “vicious method of pleading,” and this was an apt characterization of such a faulty way of pleading. It was never the design of the code that a party plaintiff should have to carefully sift each denial of the answer and to carefully compare it with each paragraph of the petition in order to see what is admitted and what is denied. Such denials may be general or they may be special, but in either event the issue must be sharply defined, and not left to surmise or conjecture. And notwithstanding a party plaintiff •may move to have the pleading of his adversary made more definite and certain, yet he is not bound to do this; that is the primary duty of the party drawing
II. Taking the answer then as admitting the date of the indebtedness, and considering this admission in connection with other facts heretofore stated, the common case is presented of a debtor in embarrased circumstances, or one whom the conveyance itself renders insolvent, making a voluntary conveyance to her daughter of the last particle of property she had in the world, thus reducing herself to a state of absolute penury. Of course in such circumstances such voluntary conveyance cannot withstand for a moment the force'of the statute leveled against Such transactions when the rights of a creditor intervene.
This conveyance has been spoken of as voluntary. This 'fact clearly appears from the testimony of the notary who took the acknowledgment of the deed and by, other evidence, and is contradicted by none. 'Recitals or statements of consideration in a deed however specific will not be sufficient to protect a purchaser where there is any evidence of fraud; in-such instance the purchaser must establish his case by facts, not by evidence of his own making. 2 Bigelow on Fraud, pp. 443 and 533 and note citing Houston v. Blackman, 66 Ala. 559; Kimball v. Fenner, 12 N. H. 248; Feltz v. Walker, 49 Conn. 93; Cruger v. Tucker, 69 Ga. 557, and other cases. See also Bigelow on Estoppel [5 Ed.] 477, and note; Bump on Fraudulent. Conveyances [3 Ed.] 594, et seq.
A still stronger view is held in England in reference to the recitals in deeds when brought in question as fraudulent within Statute, 13 Elizabeth. On this
The author just quoted elsewhere observes: “To rebut the presumption of fraud the proof , must be clear, full and satisfactory. If there is a reasonable doubt of the adequacy of the "grantor’s means, then the voluntary conveyance must fall, for the effect of it is to delay and hinder his creditors. It is incumbent on the donee, to show a case not only without taint, but free from suspicion. The condition of the donor must be shown to be such that a prudent man with an honest purpose and a due regard to the rights of
And the same rule which prevails as to a gift made by an insolvent debtor equally prevails where a gift is made which reduces the grantor to a state of insolvency. A transfer of all the donor’s property is for this reason fraudulent, and a universal donee is bound to pursue one of two courses—either to pay the existing debt of the donor, or abandon that which has been given him. Bump on Eraudulent Conveyances [3 Ed.] p. 282.
Here the answer admits the existence of the debt at the time of the execution of the conveyance, and the testimony of the notary shows that no consideration was paid for the property, none intended to be paid, and that $400 was inserted as a mere matter of form. And the evidence further shows that the property conveyed was all that Mrs. Wing then owned, at least there was no evidence to the contrary; and besides, although Mrs. Wing was a woman in humble circumstances in life, even if the $400 recited in the deed had
And the declarations made by Mrs. Wing to the notary were evidence because part of the res gestee, and were evidence to show the intent of the grantor, in executing the deed, as against her and all persons claiming under her; and those thus claiming the property must take it subject to the infirmity attached to it by the conduct of the grantor. Ibid.
III. What has been said about a consideration of “love and affection,” failing to fill the measure of valuable consideration in contemplation of law, is equally true respecting services rendered or money expended on behalf of her mother by Mrs. Free or her husband, unless there had been a contract to -that effect entered into between the parties prior to money expended or services rendered. As to members of the same family, the law implies no promise to pay for services rendered each other; and this rule finds its basis in the simple reason that such services are not rendered in expectation of pecuniary compensation. Morris v. Barnes,
But this, the ordinary presumption as to such services, may be overcome by proof of an express or an implied contract which loots to compensation as a reward for services rendered. Schouler on Domestic Relations [4 Ed.] sec. 269.
In the present case, however, no such contract is alleged in the answer, nor is it therein stated how much money was expended, nor that it was expended at the instance and request of Mrs. Wing. And, if the money had been expended without any promise express or implied of repayment, the fact of such expenditure being a past consideration would not alter the character of a deed which otherwise should be regarded as merely voluntary. But aside from what the answer sets up or attempts to set up in its concluding paragraph, there was no evidence offered in its support.
It is said that this case was determined by the court below on the authority of Dougherty v. Harsel, 91 Mo. 161; if so this was a misconception of the facts in that case as well as in this one.
■ IY. But casting aside for the moment the admissions of the answer, and considering the case as a contention between the donee under a voluntary conveyance and subsequent creditor, is the condition of the defendants bettered by considering the matter from this point of view? In a former paragraph of this opinion, citation was made of authority to the effect that a voluntary conveyance made by a donor, indebted at the time to the extent of insolvency, is void as to existing creditors, and that the result is the same where the donor, though
In the present instance we have a case of the latter kind, and the question is whether a subsequent creditor can attack a voluntary conveyance thus made, even though there be no existing indebtedness at the time of making such conveyance. The language of our statute respecting fraudulent conveyances is that, “Every conveyance * * * with the intent to hinder, delay or defraud creditors * * * shall be from henceforth deemed and taken as against said creditors •* * * prior and subsequent, to be clearly and utterly void.” Revised Statutes, 1889, sec. 5170. It will be observed that the statute makes no distinction between the two classes of creditors, and that it is unlike 13 Elizabeth, chapter 5, in that it specifically mentions subsequent creditors, something which the English statute does not do.
Under our statute, subsequent creditors are as much within its protection as prior creditors. In discussing this point, Petérs, J., in Laughton v. Harden, 68 Me. 208, observes: “It is said sometimes that a voluntary conveyance may be good against subsequent and not good against existing creditors. Why? Merely because the conveyance may operate, or be intended to defraud the one kind of creditors and not the other. It is void only according as it is fraudulent. If it is fraudulent as against a particular creditor, then as against that creditor it is void. * * * There is no distinction between a conveyance that is fraudulent in law and one that is fraudulent in fact so far as their operation in civil suits is concerned. No doubt, a voluntary conveyance is more likely to be fraudulent as against prior creditors.but not always so. * * * A conveyance, whether fraudulent in law or in fact, is after all no more nor less than a fraudulent conveyance. The only
In that case a subsequent creditor successfully attacked for fraud a voluntary conveyance.made by a father to his son, and it does not appear that there were any prior debts or prior creditors.
In Case v. Phelps, 39 N. Y. 164, there was no fraudulent intent as to existing creditors, but. the conveyance was a voluntary one to the wife, and was not put to record, but the grantor did this in order to engage in a new business and to secure the property for the benefit of himself and family in the event of losses therein, and thereupon Woodruff, J., said: “That a conveyance made for the purpose of hindering, delaying and defrauding future creditors is within the statute and void, cannot be questioned. Such a conveyance though the grantor be wholly free from debt at the time is within the terms and intent of the statute. * * * In other words, may a person about to engage in business which he believes may involve losses, with a view to entering upon such a business, convey his property to his wife voluntarily without consideration to' secure it for the benefit of himself and family in the event that such losses should occur? * * * It seems to me that the question above put can receive but one answer. The facts found constitute fraud, fraud in fact, in whatever terms it is expressed.” And upon this view the ruling of the court was accordingly made adversely to the conveyance attacked by the subsequent creditors.
An author already quoted says: “If the'donor is insolvent at the time of the transfer, the conveyance is generally deemed to be void as to subsequent creditors.” Bump on Fraudulent Conveyances, 322, and cases'cited.
In the case at bar the evidence shows as before stated that Mrs. Wing conveyed all the property she possessed to her daughter Mrs. Free, thus rendering herself destitute. She must be presumed to know this was all the property she had, and that her only child and sole heir at law would soon inherit the property without the formality of a conveyance. She knew also that she had no reasonable grounds to believe that she would be able to pay the debt she was thus contracting to plaintiff, and yet she made the voluntary conveyance, and plaintiff being in ignorance of it, she gave him
Sometimes it has been loosely said, that in order for a subsequent purchaser to successfully attack a voluntary conveyance on the ground of fraud, it is necessary that he show an “actual intent” to defraud; but this phrase is inaccurate and misleading; the statute uses no such expression; it is satisfied with “the intent to defraud” and courts ought to require no more. In the highest grade of crime, proof of an “actual intent” is not required, and, if required, convictions would rarely occur. So it would be in regard to instances like the present. It would be indeed a vain and hopeless task to set aside a voluntary conveyance if a subsequent purchaser had to prove an “actual intent” to defraud. But, if such' an intent were required, this case would furnish as strong proof of it as it is ordinarily possible to obtain. But, such a high degree of proof is not necessary. Fraud under the statute is nowise different from that found elsewhere. 'Whatever satis
And where there has been an excessive voluntary conveyance (especially where, as here, such conveyance beggars the grantor), Bigelow, O. J., remarks: “Nor would this presumption of fraud be confined in its effects to preexisting creditors. It would be equally strong as to those whose debts were subsequently contracted, because a transfer of property under such circumstances affords a reasonable ground of presumption that the intent with which it was made was to put beyond the reach of creditors, future as well as present, the fund or capital to which they had a right to resort for the payment of their debts.” Winchester v. Charter, 12 Allen, 609.
A similar view of the law is taken in New Jersey. Claflin v. Mess, 30 N. J. Eq. 211, in which, after declaring that “fraud in fact” must be shown by future creditors, it is explained that such ‘Anay be considered found when it appears that, after deducting the property which is the subject of the gift, the grantor has not retained sufficient available assets for the payment of his debts. ” This view appears to be that entertained by the learned author of a recent work on the subject now in hand. 2 Bigelow on Fraud, 105, et seq.
The premises considered, the decree will be reversed and the cause remanded with directions to the lower court to enter a decree for the plaintiff.