Warren v. Mayer Fertilizer & Junk Co.

REYNOLDS, P. J. (after stating the facts). The finding of fact and the statement of the law applicable to the case is so thoroughly in harmony with our views, that we do not think it necessary to enlarge upon it. The very learned and industrious counsel for appellant relies very strongly upon the cases of Bertholdt v. Holladay-Klotz Land & Lumber Co., 91 Mo. App. 233; Grenell v. Detroit Gas Co., 112 Mich. 70; Jones v. Arkansas Mech. & Ag. Co., 38 Ark. 17; Arnholt v. Hartwig, 73 Mo. 485; State ex rel. Peirce v. Merritt, 70 Mo. 275, and Chattanooga, R. & C. R. Co. v. Evans, 66 Fed. 809, as Avell as many other cases in line with these referred to. We cannot agree that the facts in this case come within the principles of those decisions; to the contrary we think that this case falls [573] within the doctrine laid down by the Supreme Court of the United States in Fogg v. Blair, 133 U. S. 534; Hollins v. Brierfield Coal & Iron Co., 150 U. S. 385, and with the Missouri cases of Hageman v. Railroad, 202 Mo. 249, and cases there cited, as well as the decisions of this court in Barrie v. United Railways, 125 Mo. App. 96, and Barrie v. United Railways, 138 Mo. App. 557, 119 S. W. 1020. We think that the decision of the Supreme Court in the Hageman case governs and controls in the determination and decision of this case, in so far that in many respects it is closely analogous. The neAV company, defendant here, paid adequate, and the testimony tends to show, full consideration, for the assets which it had received and took over. The purchase price went into the hands of the stockholders of the old company. If there was any fraud upon creditors, it was in the distribution of these assets among the stockholders of the old company. Neither they nor the representatives of the old company are before this court in this proceeding, and as to whether there is any liability under the facts in the case as to them, we express no opinion whatever. So far as the defendant corporation is concerned, on all the facts in the case, and we have read this record with reasonable care, there is neither fraud in fact, fraudulent intent or constructive fraud shown or proven which entitles the plaintiff to recover against it. We are not to be understood as holding that the fact that plaintiff’s claim, then pending on appeal in the Supreme Court, was not a lien because unliquidated. On this proposition, we adhere to what we have said in the Holladay-Klotz and Barrie cases, supra. The distinction lies in the fact that in the case at bar there is no evidence whatever tending to show that the transaction here involved was carried out with any intention to defraud any creditors. As to the proposition made by counsel for appellant in his brief, that this court should at least reverse so far as concerns the lot in city block No. 3381, it is [574] beyond controversy that the equitable title to that lot passed to the defendant. This is a proceeding in equity and it will not do for plaintiff, coming into a court of equity, to endeavor to assert a bare, naked legal obligation against the equities existing in favor of the defendant. The judgment of the circuit court is affirmed. All concur.