Loy v. Rorick

BLAND, P. J. 1. On the trial, before the taking of testimony was commenced, the plaintiff asked leave of the court to open and close the case, claiming that under the pleadings the burden of proof was on him. This request was denied and this denial is assigned as error. On the trial the interpleader assumed the burden of showing that she was bona fide the sole owner of the shares of stock attached. The interplea alleges ownership of the attached shares of stock in the inter-pleader. By a fair construction of the answer thereto legal ownership in the interpleader is admitted. To avoid the legal force of this admission the answer alleges that the shares of stock were in truth and in fact the property of J. B. Rorick and that he had them issued in the name of his wife for the fraudulent purpose of hindering and delaying his creditors. In this state of the pleadings the onus was on the plaintiff and he should have been permitted to open and close the case. But from the view we take of the evidence in the case this error did not prejudice the plaintiff. [113] 2. At the close of all the evidence plaintiff moved the court to instruct the jury to return a verdict for him. This was refused and the cause was submitted to the jury under instructions given for both plaintiff and the interpleader which we deem it unnecessary to set out in this opinion for the reason that in our opinion, under all the evidence, the interpleader, if she had asked it, was entitled to a direction to the jury to find the issues for her. In Payne v. Stanton, 59 Mo. 159, Wagner, J., said: “The doctrine is well settled that a voluntary conveyance by a person in debt, is not, ias to subsequent creditors, fraudulent per se. To make it fraudulent, as to subsequent creditors, there must be proof of actual or intentional fraud.” The Payne case has been again and again approved by 'our appellate courts. See Frank v. Caruthers, 108 Mo. 568; Snyder v. Free, 114 Mo. 360; Landers v. Ziehr, 150 Mo. l. c. 413; Krueger v. Vorhauser, 164 Mo. l. c. 163-4-5; Grocery Co. v. Smith, 74 Mo. App. (K. C.) 419; Boatmen’s Savings Bank v. Overall, 16 Mo. App. 510. In Boatmen’s Savings Bank v. Overall, supra, it was held that an insolvent person may make a voluntary conveyance of his property to his wife which will be good as against subsequent creditors, unless it was made with intent to hinder, delay or defraud them. The opinion of the Court of Appeals in this case was approved and adopted by the Supreme Court (90 Mo. 410). Notable cases in support of this doctrine from other jurisdictions are, Reade v. Livingston, 3 John. Ch. 481; Wallace v. Penfield, 106 U. S. 260; Schreyer v. Scott, 134 U. S. 405. If an insolvent person may make a voluntary conveyance of his property to his wife which would be good as against subsequent creditors, unless it is shown that the conveyance was made with intent to hinder, delay or defraud them, much less is such a conveyance fraud [114] •ulent when made by a person who was not insolvent and not' indebted and who was not engaged in a business in which he would probably contract debts and who had not in mind the purpose to engage in any business in the future in which he might contract debts, as was the condition of Roriek when he made the gifts to his wife. During the period in which Roriek gave money to his wife he was engaged in an occupation in which he would not likely contract debts and in which he did not, as a matter of fact, contract any. His occupation was hazardous to life and limb. He was under a legal obligation to support his wife and a moral one to make some provision against the happening of accident to himself which it was reasonable to anticipate might happen on account of the occupation he was engaged in. There is not a scrap of evidence that during any part of this period he had in mind to engage in the mining or milling or any other business; to hold, in such circumstances, that the gifts made by him to his wife of a part of his monthly earnings would be fraudulent as to subsequent creditors, would be to deny to a man, free from and with no intention of creating debts, the right to make a reasonable provision out of his means for his wife and family for fear that sometime in the future he might engage in a losing business and create debts that he would be unable to pay. There is not a ray of testimony to be found in the record to indicate that Roriek intended to hinder, delay or defraud his subsequent creditors when he was making gifts of money to his wife and, hence, no evidence tending to prove the allegations of the answer. 3. In respect to the transactions of June 2, and 28, 1900, when the twenty-five shares of stock that had been issued to Mrs. Roriek were cancelled and one certificate issued in their stead to J. B. Roriek and which he subsequently, on June 28th, assigned to Mrs. Roriek, the evidence shows that this change was made on the suggestion of the plaintiff; that the purpose was to de [115] posit the certificate with plaintiff as collateral security for a loan of money to be used in paying off a mortgage on Mrs. Rorick’s real estate in Monett. Loy had full knowledge that the original certificates were issued to Mrs. Rorick and the change to the name of Rorick was on his suggestion. He is, therefore, charged with actual knowledge of the fact that these certificates were the property of Mrs. Rorick and he is in nó position to set up the claim that he gave credit to Rorick on the faith that he was the owner of them, even if there was evidence in the record that he relied upon these certificates when-he gave credit to Rorick and Ewing. There is, however, no such evidence. ,The debt sued for was contrapted prior to the transactions of June 2 and 28, 1900, and they have no bearing on the issues in the case other than to show that from June 2 to June 28, Rorick held the certificates of stock in his own name but as trustee of his wife and that Loy is charged with knowledge of this trust relation. The judgment is for the right party and is affirmed. Reyhurn and Goode, JJ., concur, the latter in the result, as he thinks the instructions to the jury were correct.