Smotherman v. Simmons-Burks Clothing Co. , 154 Mo. App. 619 ( 1911 )

COX, J.

Two actions were brought, one by each of plaintiffs, seeking to enjoin the sale of lots 6, 7 and 8, Block 1, Maxrs’ Addition to the town of Mountain View in Howell county under execution. A temporary writ was issued, and upon trial the issues were found for plaintiff and the injunction made perpetual and defendants have appealed.

In July, 1909, defendant, Simmons-Burks Clothing Company, obtained judgment in the Howell County Circuit Court against W. M. Smotherman and his wife, Cynthia Smotherman, and on this judgment an execution was issued and placed in the hands, of defendant C. M. Heard who was at the time the sheriff of Howell county, and under it he levied upon the lots above described and advertised them for sale on December 17, 1909. The plaintiff, Wise Smotherman, brought suit to enjoin the sale of lots 7 and 8, Block 1, Marrs’ Addition to Mountain View, upon the ground that he was the owner thereof and a sale would cast a cloud upon his title, and in this petition he alleged that he was the owner in fee simple of lot 8 and that he held the legal title to lot 7 as trustee for his mother Cynthia Smotherman, and that said Cynthia Smotherman occupied lot 7 as a homestead, she having been deserted by her husband W. M. Smotherman. At the same time, A. M. Smotherman brought suit to enjoin the sale of lot 6 in the same block upon the ground that he was the owner thereof and that a sale would cast a cloud upon his title.

The answer of defendants alleged the ownership of the property to be in W. M. Smotherman and Oynthia Smotherman, a.nd that the transfer of the property to their sons, Wise and A. M. Smotherman, was fraudulent as against the creditors of the grantors.

These two actions were consolidated and tried together, and after the testimony was heard the court found the issues for plaintiff and made the injunction permanent.

The evidence shows that W. M. Smotherman and Oynthia Smotherman were husband and wife and that Wise and A. M. Smotherman were their sons. W. M. Smotherman was doing business as a merchant in Mountain View, and in the fall of 1908, deserted his wife and family and has not returned or furnished anything toward their support since. The deed to A. M. Smother-man to lot 6 was made on the 81st day of March, 1908, and on August 21,1908, a deed from W. M. Smotherman to his wife Oynthia Smotherman was executed and this deed was filed for record December 11, 1909. What property was conveyed by this deed does not appear, but presumably it was lot 7, Block 1, Marrs’ Addition. A deed of W. M. Smotherman and wife to John W. Smotherman, (who was Wise Smotherman), was executed November 26, 1908, and recorded November 27, 1908.

If the purpose of W. M. Smotherman and his wife in conveying the property to their sons was to hinder, delay or defraud their creditors and the grantees knew' that fact and accepted the deeds with the intent to assist in the accomplishment of that purpose then the transactions were fraudulent and should not be permitted to stand. [Gust v. Hoppe, 201 Mo. 293, 100 S. W. 34; Wall v. Beedy, 161 Mo. 625, 61 S. W. 864.]

In determining the intention of the parties in a transaction between members of the same family in which fraud is charged the closest scrutiny will be exercised, but if, after a full and fair review of all the facts, the transaction does not appear to be tainted with fraud it may stand. [Bank v. Fry, 216 Mo. 24, 42, 45, 115 S. W. 439.]

As to lot six, claimed by A. M. Smotherman, the undisputed evidence shows that when conveyed to him March 31, 1908, it was a vacant lot, and that he paid for nearly all the improvements that were afterwards put upon it. Further there is no evidence that the grantors were insolvent at that time, nor that this conveyance was made in anticipation of a future indebtedness; hence, there is no evidence upon which to impeach the good faith of this transaction and as to it the court’s finding is right.

As to lot eight, claimed by Wise Smotherman it is sufficient to say that after a careful examination of the testimony and examining it with a close scrutiny, as we ■ are required to ido in transactions between members of the same family, our conclusion is that the finding of the trial court that the transaction was in good faith should not be disturbed.

Lot seven, which it is claimed, Wise Smotherman holds as naked trustee for his mother, Cynthia Smother-man, stands on an entirely different basis from the others. The-judgment upon which the execution was issued was against both W. M. Smotherman and his wife, Cynthia Smotherman. The debt was, therefore, the debt-of Cynthia Smotherman as well as that of her husband, and under the evidence in this case she was the equitable owner of lot seven and hence, this lot was subject to execution for her debt unless she can hold it .as exempt; but as she is not a party to this suit the question of her right to exemption is not involved in this case, and as to lot seven the injunction should have been dissolved.

The judgment will be affirmed, as to lots six and eight, Block 1, Marrs’ Addition to Mountain View, and reversed and the injunction dissolved as to lot seven, Block 1, Marrs’ Addition to Mountain Yiew.

All concur.