169 Mo. 357 | Mo. | 1902
— On October 18, 1899; the plaintiff instituted this suit in equity to set aside a deed from Daniel II. Duffy and wife to their co-defendant, Daniel H. Early, and to subject the lot of land described in said deed to the lien of a judgment obtained by plaintiff against said Daniel H. and Elizabeth Duffy his wife, in the circuit court of Buchanan county at the September term, 1898.
The plaintiff alleges that he obtained said judgment on a note executed by Daniel and Elizabeth Duffy on April 16, 1894, for $695.53, to one John Yahey, which, for value received, said Yahey assigned to plaintiff. He further alleges
Daniel H. Early filed a separate answer which, omitting caption, is in these words:
“Comes now Daniel H. Early, one of the above-named defendants, and for his separate answer to plaintiff’s first amended petition says, that he denies each and every allegation therein contained.
“For further answer defendant Daniel H. Early says that on August 29, 1895, he purchased from the plaintiff, the said William E. Spratt, the property described in plaintiff’s amended petition, and paid him two thousand five hundred dollars therefor. That he thereafter continued to •own said property until the third day of January, 1896, when he sold and transferred said property to Elizabeth Duffy in ■consideration of two thousand five hundred dollars, to be paid to him by the said Elizabeth Duffy in the future from that date, and that in the event of the said Elizabeth Duffy failing to pay him said sum of two thousand five hundred dollars, the purchase price of said property, then she was to reconvey said property back to him, the said Early. That pursuant to this agreement the said Elizabeth Duffy continued to own the naked legal title in and to said property until September 8, 1898, when, being unable to pay any part of the purchase price, she reconveyed the property back to said Daniel H. Early, under and pursuance to the agreement aforesaid. That
Daniel H. Duffy and Elizabeth Duffy filed their separate-answer in said cause, which said answer is in words and figures as follows:
“Now a.t this day come the above-named Daniel IT. Duffy and Elizabeth Duffy and for their separate answer say that they deny each and every allegation in plaintiff’s amended petition contained. Having fully answered they pray to be-dismissed from this action.”
Plaintiff filed a reply to separate answer of Daniel H. Early denying generally the new matter alleged therein.
The cause was tried at the January term, 1899, and a-decree rendered for plaintiff that said conveyance from Elizabeth Duffy and D. H. Duffy, of date September 8, 1898, to Daniel H. Early of lot 9 in block 28 in Patee’s addition to the city o-f St. Joseph, was null, void, and of no effect; that said judgment was a lien thereon, and gave defendants, thirty days in which to pay the same and in case of their-' failure to pay it in that time, the sheriff should sell the same as in case of sales under execution, to- satisfy said judgment and costs. At the request of defendants the court made a special finding of facts and his conclusions of law thereon, to which defendant excepted at the proper time. It is deemed unnecessary to set out the findings in full. Plaintiff called each o-f the defendants as witnesses and their1 testimony constitutes the- bulk of the evidence.
We glean the following facts from the record. On or about April 16, 1894, John Vahey, as surety for defendant Daniel Duffy, paid a note to the Saxton Bank in St. Joseph for $500; thereafter Daniel Duffy and Elizabeth Duffy, his wife, executed and delivered to said Vahey their promissory note for said $500 and interest; this note Vahey assigned to Wm. E. Spratt, the plaintiff, who brought suit on it in the circuit court of Buchanan county, and obtained service on said Duffys a few days prior to September 8, 1898, and obtained judgment against them thereon on October'll, 1898. Defendant Daniel H. Early is a son of his co-defendant Mrs. Elizabeth Duffy and a stepson of Daniel Duffy. He was-known as “Harry J. Early” and as such did business and kept his bank account. He testifies he was baptized and confirmed in the Catholic church by the name of Harry J. Early and never knew until the deed from plaintiff Spratt was about to be made to him, that his name was Daniel H. Early, when his mother told him his true name was “Daniel H.” instead of “Harry J.,” and the deed was- made accordingly at his suggestion. He was twenty-nine years of age when the trial took place in January and Eebruary, 1899. He lived in his mother’s family as a member thereof, as well after her marriage to Mr. Duffy, as prior thereto, until June, 1897, when he married, and ceased to live with her, and made his home with his wife’s mother. He testified that he began to work for wages when he was about fifteen years old, at a salary of $20 a month. In 1890 he was employed by the Grand Island Eailroad Company at $50 a month. In 1891 it was increased to $60 a month. It was increased to $65 in four or five, months and then to $75 and at the time of the trial it was $100 a month. He testified that up to the time he
They rented the homestead to O’Connor by the month. He kept it a few months and she then rented it to Dawson, until August 24, 1895, when she sold it to him for $2,900, of which $1,700 was cash and the balance, $1,200, was secured by deed of trust on the property. Of the $1,700 thus received she turned over to her son Early $1,000 as soon as she received it, and a few days later gave him $500 more, and he deposited both sums in the Tootle-Lemon Bank in his name as “Harry J.” Early. Dawson paid the $1,200 in installments, the last in December, 1897. In 1895, after'the' sale of the homstead property, Daniel Duffy negotiated for the purchase of the property in controversy in this suit without disclosing D. H. Early as the purchaser until the day the deed was executed by Spratt to Early. Daniel Duffy handed Spratt a check for $1,000 signed by “Harry J.” Early on the Lemon-Tootle Bank. On January 3, 1896, Daniel Early drew another cheek,' signed “Llarry J.” Early for $506.60 and
On September 8, 1898, Daniel Duffy’s wife reconveyed the lot in suit to Daniel Early for the expressed consideration of $2,500, and on the same date Early and wife gave a deed of trust thereon to secure Mrs. Duffy the payment' of $1,000' two years after date.
These two instruments were made after the suit of Spratt was commenced against the Duffys on the Vahey note, and after they were served with the writ of summons. The evidence tends to show that Mrs. Duffy’s deed to defendant Early was made out and taken to him without a request therefor by him, or any negotiation therefor. Her deed of trust, for $1,000 was afterwards released by Mrs. Duffy without receiving any part of the note.
I. A reversal is sought on two grounds; first, that the money which purchased the lot in suit from Spratt was furnished by defendant Daniel H. Early, and his subsequent conveyance to his mother and the reconveyance by her to him was not and could not have been a fraud on plaintiff, as plaintiff
The circuit court found that the purchase money was advanced by Mrs. Duffy out of the proceeds of the sale of her homestead, and that finding is fortified by the testimony, unless it be conceded that while the purchase money ,was clearly shown to have been the price she received from the sale of her homestead or Dawson lot, it became the money of Daniel Early before he paid it over to Spratt for the lot in suit.
It rarely occurs that a fund can be traced,so satisfactorily as the purchase price of the homestead lot has- been in this case. Mrs. Duffy sold Dawson her homestead August 24, 1895, and received $1,100 cash down, and of this amount she turned over $1,500 to her son Daniel Early, and on August 29, 1895, the trade was made by.her husband, Daniel Duffy, with Spratt, and the'deed made to Daniel Early, and he gave a cheek for-$1,000 that day on his account with the Lemon-Tootle Bank, which account had received a credit on August 26th of $1,246.30, and on January 3, 1896, he checked $506.60 in favor of Tyler who held Spratt’s note for $1,500, which was a lien on the lot and had been assumed by Early when he bought the lot. All the credible evidence tends to corroborate that Early received this $1,500 directly from his mother contemporaneously with his receiving the deed to the lot.
Early testified that while it was true he received the $1,500 from his mother, it was a repayment to him of moneys he had advanced his mother and stepfather Duffy out of his monthly wages as clerk of the Grand Island railroad. He testified these advancements amounted at that time to about $3,500, and his mother had agreed to repay him for the moneys he had advanced for the support of his mother’s family of which he was g member. That Early bought or took the deed in his own name for the benefit of his mother and was
We are thus brought to the second contention of the defendants, that, admitting it was Mrs. Duffy’s money that paid for the lot in suit, and that she directed it to be conveyed to her son Daniel Early without any consideration moving from him to her,' and that he subsequently conveyed it to her also without consideration, other than the $1,500 given him by her, and she afterwards conveyed it to him without consideration, inasmuch as the purchase money was the proceeds of her homestead it was not subject to levy or attachment by her creditors, and no fraud can be predicated upon any disposition she may have seen fit to make of it; that she could give it arvay if she chose without any wrong to Spratt or Tyler or any other creditor. This presents the most important question on this record.
The evidence tends to-show, without contradiction, that Mrs. Duffy inherited the Dawson lot from her mother, Mrs. Carr, in the year 1872, and has lived on it and occupied it as her homestead continuously from 1872 until she rented it ,by the month to O’Connor in the summer of 1894.
Prior to the amendment of the Homestead Act, section
In Loring v. Groomer, it was further said such existing homestead, occupied by a head of a family, not exceeding Ike amount and value prescribed by statute, became exempt aí+er the Act of 1887, from attachment and execution on all causfci of action accruing thereafter and it made no difference how it was acquired or whether the title thereto was in him or his wife. [142 Mo. loc. cit. 12; Peake v. Cameron, 102 Mo. 568, 574.]
Mrs. Duffy, after the Act of 1887 became the law of this State, owned a homestead in fee simple in the lot in suit and was such owner when she married'her co-defendant, Daniel Duffy, her present husband, in 1879. By her marriage to Duffy, who continued to occupy said homestead with her, she did not forfeit her homestead exemption. [West v. McMullen, 112 Mo. 410; Hufschmidt v. Gross, 112 Mo. 649.]
Neither did the temporary renting of her homestead by the month, and the renting a piece of property in the country by her husband with the intention to return to her home in the city, have the effect of forfeiting her homestead therein. [Hufschmidt v. Gross, supra. ]
She did not acquire any other homestead until she sold her homestead in the Dawson property, and the proofs as already stated show beyond a peradventure that the proceeds
In Vogler v. Montgomery, 54 Mo. 577, it was ruled that neither a fraudulent conveyance nor an act of bankruptcy would produce a forfeiture of the benefits of the homestead exemption. [Citing Cox v. Wilder, 2 Dillon C. C. 46.] That ruling was reaffirmed in State ex rel. v. Diveling, 66 Mo. 375. In Burns v. Bangert, 92 Mo. l. c. 177, that case was again approved, and it was said of exempt property,. “If his creditors can not reach it for his debt, its sale or conveyance is no concern of the creditors, since they have no. right or claim thereon. They can only complain of sales and conveyances of property that is subject to their debts. To this extent the creditors have no standing in court.” [Davis v. Land, 88 Mo. 436; Hartzler v. Tootle, 85 Mo. 31.] All these cases were reviewed in Bank v. Guthrey, 127 Mo. loc. cit. 193, and the doctrine reasserted and finally settled in Macke v. Byrd, 131 Mo. 691.
So that if we take the viewr for -which plaintiff contends, that Mrs. Duffy sold her- homestead in the Dawson property and out of its proceeds invested $1,500 in the land in suit for her own benefit, but in the name of her son, and after-wards took the deed to herself, she thereby acquired a homestead therein, and in so doing she perpetrated no fraud on her creditors because the statute expressly permitted her to acquire a new homestead, and it was exempt from the lien of any execution or attachment, and they were not concerned therein, as she was at liberty to mortgage, alien, sell or dispose of it in any manner she might deem proper, and conse;
If the Dawson property had not been the homestead of Mrs. Duffy, and if the evidence did not conclusively establish that the proceeds thereof had been invested in a new homestead, the property in suit, we think the finding of the court, that the deed from Mrs. Duffy and her husband was made to prevent the collection of plaintiff’s judgment, must have been sustained; but as both of said homesteads were exempt from execution or attachment and equally exempt from a proceeding in equity to set aside a conveyance thereof even if fraudulent, the judgment of the circuit court mtast be and is set aside, and the bill dismissed, which is accordingly directed in tbis court, at tbe cost, however, of defendants, as a penalty for their failure to make a proper abstract and statement of the case in accordance with the rules of this court.
Judgment reversed, and decree in this court.