84 Mo. 427 | Mo. | 1884
This suit was instituted in St. Louis circuit court by plaintiff, a judgment creditor of defendant, Ewing C. Ketchum, to subject to sale for the satisfaction of the judgment, certain real estate, the legal title to which is invested in defendant, Dameron, as trustee for defendant, Louisa C. Ketchum, wife of said Ewing C. It is substantially averred in the petition, as the ground for the relief prayed for, that in February, 1872, Ewing C. Ketchum was indebted to plaintiff in the sum of money for which plaintiff’s judgment was rendered in 1879 ; that said Ketchum in 1872 was the owner of the real estate in question, and at his request the deed conveying it to said Dameron in trust for his wife was made; that the deed was voluntary and without consideration, and made for the purpose of putting the property beyond the reach of creditors. It is also alleged that defendant, Ketchum, has no other property out of which plaintiff can make his judgment; that Ketchum had, out of his own money, put valuable improvements on the property conveyed, and that it was held in secret trust for him to defraud creditors. The answer was a general denial, and on the trial in the circuit court the bill was dismissed and judgment rendered for defendant, which, on appeal to the St. Louis court of appeals, was affirmed, and the case is before us on appeal from said court.
It is insisted by appellant that, inasmuch as Ketchum was indebted to him at the time the voluntary conveyance of the real estate in question was made, that such conveyance as to him is void, and that it should be so declared. We do not understand this to be the law. While such a conveyance is presumptively fraudulent, the presumption may be rebutted. Bump on Fraudulent Conveyances, pages 275-6, states the rule thus:
It has never been held in this state, when the point was involved in the decision that a voluntary conveyance, as to existing creditors, is void, but the contrary has been affirmed in the case of Bird v. Bolduc, 1 Mo. 702, and Lane v. Kingsbury, 11 Mo. 402. In the latter case it is said that “the doctrine that a voluntary conveyance is nor fraudulent per se, as to existing creditors, though opposed by some, is established by a great weight of authority. The bona fldes of every such conveyance is a question of fact to be ascertained by a jury under all the circumstances attending it.” The rule, as laid down by Mr. Bump, has been recognized by this
The conditions mentioned in the cases of Potter v. McDonald, and Patten v. Casey et al., supra, upon which the law predicates conclusive presumption of fraud, do not exist in the case before us. The evidence in the case has influenced our minds as it did the minds of the judges of the court of appeals, and that of the trial judge who heard it, in that, in February, 1872, when the conveyance in question was made, Ketchum was neither in embarrassed, nor doubtful circumstances, but on the contrary, that he was entirely, solvent; that the assets invested in his business, as a merchant, amounted to more than $50,000 in excess of his business debts, and that he also owned outside of the property in question, conveyed in trust for his wife, which was incumbered with a debt of $4,000, and worth about. $7,000;
The payment of taxes on the property by Ketchum, as well as the payment made on his debt, secured by mortgage, or deed of trust on the property of the wife, afford no ground of relief to plaintiff, inasmuch as in paying his own debt he was doing nothing more in law or morals, than he was bound to do, and inasmuch as the taxes .paid on the property which was used as a homestead, amount to less than a fair rental value of the property so occupied.
Judgment affirmed.