116 Mo. App. 316 | Mo. Ct. App. | 1906
(after stating the facts) — The first point made against the judgment is that the court below erred in refusing to instruct that if, on account of rents and profits he had received from her land, defendant owed the garnishee when the goods were sold, more than the alleged consideration she was to pay for a two-thirds interest in the stock, and it was agreed between the garnishee and defendant that the consideration for her purchase was a credit to be entered on what the defendant owed her, then the plaintiff could not recover unless it appeared that the defendant had transferred the stock with the intention of hindering and delaying his creditors and the garnishee participated in the fraudulent purpose. What was shown in regard to this land matter was that in 1866, the garnishee inherited from her father a one-third interest in 320 acres of land. Her brother, the plaintiff, and a sister inherited the other two-thirds. When Goss married her in 1869, he went into possession of her interest, and during hisi partnership with Vandeventer in farming and stock raising, the land was used in the business. Mrs. Goss’ interest was treated as a part óf her husband’s contribution to the capital of the firm. When the partnership ceased business in 1893, and a division of assets occurred, the garnishee’s interest was sold or traded to Vandeventer and she joined in the deed. The only evidence even remotely relating to the claim Mrs. Goss now prefers against her husband for the rents and profits of the land is, that in 1893, when the firm of Goss & Vandeventer quit business and the land was divided, Goss said she “should have her part.” There was no allusion to the rents he had received, and the expression quoted can hardly be taken as referring to rents. The natural inference is that Goss meant his wife should receive her part of what was paid or given in exchange
It is insisted that even if the transfer of the merchandise to the garnishee was wholly voluntary and without any consideration, it was valid against the exising creditors of Goss unless he was insolvent at the time the transfer was made or made it with an intent to hinder his creditors; and that as there was evidence to prove he was solvent, the issue was for the jury and the court erred in directing a verdict. No doubt, the mere fact that an individual was indebted is not, in this jurisdiction, sufficient to conclusively brand a voluntary conveyance of property as fraudulent. It is presumptively so and the burden is on the donee to establish its validity. Whether or not it will be treated as fraudulent, depends on the aggregate value of his assets as compared with what he owed. [Fehlig v. Busch, 165 Mo. 144, 65 S. W. 542; Walsh v. Ketchum, 84 Mo. 427, 430;
We will next consider what the evidence shows regarding the financial condition of appellant’s husband in February, 1900, when he transferred his stock of goods; and in making this inquiry we will accept as true the testimony of Harry M. Goss, which is the most favorable to the contention that the defendant was unembarrassed at the time, and greatly exceeds the other estimates of his means. That witness showed, at most, available assets amounting in round numbers, to $8,750. The merchandise given to his wife (her two-thirds of the stock) was invoiced at $1,597; and, deducting that sum, Goss had left $7,153 of miscellaneous property, largely farming implements and farm products. Plaintiff’s action for $25,000 was pending at the time, and it resulted in a judgment for over $5,000. Goss owed at least three other debts whose amounts are not stated; and it seems that suits were pending against him for one or more of them. Under these circumstances, and considering the nature of Goss’s assets, and the prices at which such property sells under execution, the conclusion is palpable that he was in embarrassed circumstances, threatened with judgments and that after the gift of merchandise to his wife, he was left without amide assets to meet his liabilities to creditors, including plaintiff. The transfer was bound to hinder and delay his creditors in collecting their debts and therefore the court did not err in holding the transfer void in law at plaintiff’s instance.
We have said nothing regarding Goss’ intention in disposing of his personalty in 1900, but it is scarcely to be doubted that it was to evade payment of his debts. The judgment is affirmed.