Cooper v. Standley

G-ill, J. In October, 1885, plaintiffs, Cooper & Co., sued defendant Standley on four promissory notes, amounting in the aggregate to thirteen hundred dollars, excluding interest, which were executed February, 1882, and the last thereof maturing in February, 1884. While [143] this action was pending, and in aid thereof, plaintiffs in June, 1887, sued out an attachment, and levied upon certain lands in De Kalb county as the property of defendant Standley. The ground of attachment set out in the affidavit, and relied upon at the trial, was that defendant had fraudulently conveyed his property so as to hinder or delay his creditors. Issue was joined by defendant’s plea in abatement, and the same was tried in the circuit court, .where the jury rendered a verdict for the defendant; and, on judgment being entered thereon dissolving the attachment, plaintiffs have appealed to this court. I. To sustain the allegation of fraudulent conveyance, contained in the attachment affidavit, the plaintiffs rely upon the showing made, to-wit, that on June 7, 1884, the defendant, owing at the time notes in suit and otherwise insolvent, deeded to his wife the De Kalb county land. The evidence showed indisputably that the wife at the time paid nothing therefor, and it is claimed, therefore, by plaintiffs that such conveyance of Standley to his wife was voluntary, without any consideration, and, therefore, fraudulent and void as to then existing creditors. Standley at the trial, however, testified that the land was purchased with his wife’s separate means, and that he simply “gave this land over to her as her just dues.” . . Before detailing other facts necessary to be considered in this case, we will, with the view of narrowing the field of controversy, settle some of the legal questions contained in counsel’s briefs. If the conveyance of Standley to his wife, made in June, 1884, was merely voluntary — a gift — without consideration of any kind known as valuable, and made at a time when he was indebted beyond his ability to pay, and the effect of such conveyance wás to hinder and delay these plaintiffs or other existing creditors in making theif claims against said grantor, then it was [144] fraudulent and void as to such creditors and furnished ground for this attachment. The motives of the grantor in deeding the land to his wife under such circumstances are wholly immaterial. The law pronounces the transaction a fraudulent one as against the then existing creditors. Standley would not be permitted to give away his property to the prejudice of his creditors. “ Dost before generous,” is the maxim. Potter v. McDowell, 31 Mo. 62; Douglas v. Cissna, 17 Mo. App. 44; Patten v. Casey, 57 Mo. 118; Lionberger v. Baker, 88 Mo. 447. The correlative of the foregoing proposition, however, is that, if defendant Standley purchased the land with money belonging to his wife and held the same for and in her behalf, then he might lawfully convey said land to her, and such transaction would not furnish grounds for attachment. The question arises then, was the De Kalb county land bought with the separate means of Mrs. Standley ? In this connection the undisputed evidence shows the following facts, substantially: Prior to the fall of 1881, Standley and his wife resided in the state of Illinois, from which state they removed to De Kalb county, Missouri, and purchased the land, attached, in October, 1881. While the Standleys resided in Illinois, and during the years 1873 and 1875, Mrs. Standley came into the possession of an' inheritance from her father’s estate, amounting in the aggregate to nearly two thousand dollars. It seems that her husband used this money in improving some land he owned there. Preparatory to coming to Missouri in 1881, Mr. Standley sold this real estate in Illinois, but the wife refused to join in the deed except upon condition that out of the proceeds she be paid back the money formerly inherited from her father. Standley consented and gave over to his wife the sum of twenty-three hundred dollars which she took and claimed as her own separate means. [145] Mrs. Standley brought this sum to Missouri, and her husband used it in purchasing the land in De Kalb county. The deed thereto was, without question, taken in the name of the husband. After this, in June, 1884, defendant Standley (as he claims for the purpose of returning to his wife that which belonged to her) made the conveyance to Mrs. Standley, which is now attached by this attachment proceeding. We hold that these facts clearly establish Mrs. Standley’s title to the money thus invested in the De Kalb county land. And, unless by reason of the subsequent conduct of husband and wife the wife parted with the means thus held by her, it continued her property and furnished good consideration for the conveyance in June, 1884. II. Plaintiff’s counsel is correct in the assertion that in the absence of proof as to the laws of Illinois the courts of Missouri will presume the common law in force there. Bain v. Arnold, 33 Mo. App. 631, and cases cited. And by force of the common law the money inherited by Mrs. Standley in Illinois in 1875 became the property of her husband. Yet, as • repeatedly announced in this state, “while at common law the chattels of the wife vested in the husband by virtue of the marriage, yet he could waive his rights thereto and permit her to retain them, released from the husband’s marital rights.” Clark v. Clark, 86 Mo. 114; Bethel v. Bailey, 35 Mo. App. 463, and cases cited on p. 469. Hence the twenty-three hundred dollars, set aside to Mrs. Standley on the sale of the farm in Illinois in the fall of 1881, became her own separate means, and as such she brought it into the state of Missouri. Here it was impressed with the provisions of our laws, and was her statutory separate property, of which her husband could not deprive her, except in the manner provided by our statutes, section 3296, Revised Statutes, 1879. The mere use of such means by Standley did not destroy Mrs Standley’s title, since she never consented [146] thereto in writing. Broughton v. Brand, 94 Mo. 169; Gilliland v. Gilliland, 96 Mo. 522; Bangert v. Bangert, 13 Mo. App. 144. It follows, therefore, that the transfer of the land by Standley to his wife in 1884, in the absence of actual fraud, did not constitute a voluntary conveyance in fraud of creditors and supplied no ground for an attachment. The jury found, under the instructions given by the court, that the conveyance was in good faith, and since the undisputed facts do not establish a constructive fraud, the judgment was for the right party, and is affirmed. All concur.