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(216 S.W.)

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Where a husband on the eve of his marriage conveyed eight-tenths of his property to a daughter by a former marriage, in fraud of the dower rights of his prospective wife, the wife may maintain a suit in equity to place all the parties in statu quo, notwithstanding that the conveyances may have been valid as between grantor and his daughter.

3. DOWER 20-PARTIAL VACATION OF ANTENUPTIAL CONVEYANCE IN FRAUD OF WIFE.

Where a husband, in anticipation of marriage and to defraud his prospective wife of her dower rights, executed two trust deeds to a daughter by a former marriage, equity may set aside both deeds, and is not limited to setting aside so much of the fraudulent transaction as would cover plaintiff's interest; the dower being dower initiate, and not dower consummate. 4. HUSBAND AND WIFE

6(4) RIGHT OF WIFE TO SET ASIDE FRAUDULENT ANTENUPTIAL CONVEYANCE.

Where a husband, in contemplation of marriage, has executed trust deeds to a daughter by a former marriage in fraud of his prospective wife, that he has promised his first wife to care for this daughter out of the property which was the result of their joint efforts does not affect the wife's right to have the conveyance set aside.

Vordick, who was a physician in the city of St. Louis, with accumulated property of the value of over $75,000, was returning from a trip to the Orient in the spring of 1912 (according to his statement in a deposition taken), and whilst on the good ship Celtic he became acquainted with the plaintiff. He was born in March, 1849, and was then a widower of some 63 summers. According to his statements, in 1913 he renewed the acquaintance formed on the Celtic, by beginning a correspondence with plaintiff, then a resident of the state of New York. In June, 1913, he went to New York to press his suit, but received no definite reply. The correSpondence continued, and finally in the early part of August the parties were engaged to be married.

Shortly before he started for New York, and on the 26th of August, 1913, he executed the two deeds of trust, and the two notes secured thereby. The trustee and beneficiary in each are the same. One covers two farms in St. Louis county and secures the $30,000 note, and the other covers two lots in the city of St. Louis and secures the $45,000. He says that his daughter, Mrs. Linn, and the trustee and beneficiary, were all in an office with him, and he explained that he was thinking of getting married, and wanted to make these deeds of trust and notes so as to protect the daughter, Mrs. Linn. Kirsch, the beneficiary in both deeds of trust and the payee in both notes, paid nothing. When the papers were duly executed, Kirsch immediately indorsed the notes, and Vordick handed them over to his daughter, Mrs. Linn, together with the deeds of trust securing them. Thinking the great bulk of his property was safe in the hands of his daughter, he shortly followed his wedding ring (sent the plaintiff upon the agreement to marry) to the state of New York, and there on September 11, 1913, married the plaintiff. Upon a trial, the chancellor nisi canceled the two deeds of trust and notes secured thereby, and enjoined Mrs. Linn from transferring said

Appeal from St. Louis Circuit Court; notes. From such judgment this appeal is John W. McElhinney, Judge.

Action by Alinda B. Vordick against George L. Kirsch and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Action to cancel two deeds of trust and the notes secured thereby (aggregating $75,000) on the ground that they were made for the purpose of defrauding the plaintiff (respondent here) as the intended wife of August H. Vordick out of her dower and other marital rights as his wife. The action was brought by plaintiff, as the wife of August H. Vordick, against the said Vordick, as also against the trustee and beneficiary in the two respective deeds of trust, and also against the married daughter of Vordick, Augusta Linn.

taken.

Since the trial Dr. Vordick has died, and as we gathered from the argument, and from another case upon our docket, Mrs. Vordick (plaintiff here) had secured a divorce from him prior to his death. Further details will be left to the opinion.

Muench, Walther & Muench, of St. Louis, for appellants.

Homer Hall, of St. Louis, for respondent.

GRAVES, J. (after stating the facts as above). [1] I. That Dr. Vordick, in contemplation of marriage with plaintiff, undertook to curtail the rights of his promised wife in his property, is too plain for argument. The

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

record facts so speak, He was transferring [ concede as a general rule. A fraudulent at least eight-tenths of his property in an- grantee cannot (because of the doctrine of ticipation of the marriage. This was a fraud estoppel) defeat the fraudulent grantee. upon the woman to whom he then was en- This, however, is not such a case. The grangaged. The daughter, the beneficiary of tor is not attacking those conveyances. He this fraud, together with the other defend- was helping the fraudulent grantee to susants, were apprised of the facts when the tain them. Here the attack comes from the conveyances were made. They knew that the wife, whose rights were (through the fraud) conveyances were being made in anticipation | vitally affected. What her rights might be of marriage to plaintiff. The conveyances were not as yet determinable. The time for were of such proportions that the parties the assertion of the wife's property rights were bound to know the fraudulent purposes had not yet arrived. Under such circumof the grantor. The purpose was patent to stances the court was justified, through this one of common understanding. The grantor action in equity, in placing all the parties told them that he was contemplating mar- in statu quo. This is what the decree did. riage, and was making these conveyances in anticipation thereof. No other construction can be placed upon the facts in evidence. The acts of Dr. Vordick were in fraud of his prospective wife, and the other parties were apprised of the fraud, and knew it.

It is urged that a man engaged to be remarried may, prior to such remarriage, make conveyance of a part of his property to a child of the first marriage, if acting in good faith. Cases are cited in support of this theory. We need not discuss them. The evidence in this record does not show good faith, and the doctrine invoked needs no review. The proportion of the property conveyed by Dr. Vordick refutes the idea of good faith, and the doctrine which is invoked by learned counsel is not in the case. The record evidence shows a fraud on the intended wife, rather than a transaction, in good faith, to properly care for the daughter. Our courts are astute in the protection of dower as against frauds, whether such frauds are committed "in contemplation of marriage or during its existence." Donaldson v. Donaldson, 249 Mo. loc. cit. 245, 155 S. W. 791, and cases cited. The facts in the instant case conclusively show the fraud upon plaintiff and the participation therein by all the parties upon the other side of the case.

[2] In fact, it is not seriously urged that there was not fraud; but it is urged that the court should not have canceled both deeds of trust, because of the doctrine that the doctor had the right to make reasonable provisions for the daughter of the first marriage, without being guilty of fraud. To put the question differently, they urged that, although it be conceded that the transaction as a whole was fraudulent, yet the trial court should, by the invocation of the doctrine, supra, divide the whole into parts, and say that one deed should be canceled and the other sustained. To this we do not assent. A scheme concocted in fraud (participated in by all the parties as here) should fail as a whole, Fraud vitiates whatever it touches. But they urge that a fraudulent conveyance is good as between the parties and therefore, as between the doctor and the daughter the

[3] II. As said, it is urged that the setting aside of the two deeds of trust should have been only to the extent of the plaintiff's interest, and not in full; this on the theory that the conveyances were good as between the father and daughter. In other words, they urge that the wife stands in the position of a creditor in a case of fraudulent conveyances. There are expressions to this effect in the books. However, they usually occur in the cases in mere generalities, and without discussion. That the rights are similar there can be no question. However, there is this difference to be observed: The creditor has his claim fixed by an adjudication as to amount. The time for fixing the liability is at hand. In cases like the present the liability has not been fixed, nor can it be fixed until a later period.

Actions like the present are allowed to protect a future right of action. Dower initiate, and not dower consummate, is involved. If this were an action involving dower consummate, then the action would more nearly parallel the creditor's action. If the doctor was legally obligated to protect his daughter, the question might be different. But there was no legal obligation to protect her. There might be a moral obligation, but this moral obligation would be fully fulfilled by permitting the law to take its course. In other words, the law of descent and distribution would protect both the daughter and the wife. She therefore, as to a fraudulent conveyance to her, did not stand in the same attitude as one taking a fraudulent conveyance as against creditors. In many of the conveyances there is no protection to the fraudulent grantee, save and except the estoppel that the law pronounces against the fraudulent grantor. In this case the daughter is left with full legal protection as to her rights, with the fraudulent scheme set aside. In such case we do not believe there is necessity upon the part of a court of equity to invoke the estoppel against the fraudulent grantor in the conveyances. For this and other reasons suggested we see no error in uprooting the whole fraudulent scheme. It is not inequitable so to do, because the

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law, at the proper time. She and the wife | cree a constructive trust, the action, where both will each get what the law allows them.

[4] III. It is urged that the doctor promised his first wife to care for this daughter out of the property which was the result of their joint efforts. Such a promise does not change the situation. It was without consideration and void. Rice v. Waddill, 168 Mo. loc. cit. 116, 67 S. W. 605. In the Rice Case supra, speaking of such a promise, this court said:

"But that promise was utterly without consideration and incapable of enforcement, either in a court of law or a court of equity. Subsequently, and before he receives the estate from his brother, his wife dies, and he marries plaintiff. A new obligation is assumed. Whatever his duty to his first wife and his children, the law casts upon him the duty of supporting his second wife, and the law attaches her right of dower to his estate."

And in a case somewhat similar (Weller v. Collier, 199 S. W. 974), this court promptly set aside in toto (not in part) a conveyance in fraud of a wife.

parties lived in city of St. Louis, should have been brought therein, and not in the St. Louis county circuit court; the action being one in to real estate within Rev. St. 1909, § 1753, as which the judgment would not affect the title amended by Laws 1915, p. 224.

Original proceeding in prohibition by the State of Missouri, at the relation of Benjamin G. Brinkman, against John W. McElhinney, Judge of the Circuit Court of the County of St. Louis, Mo., and another. Preliminary rule made absolute.

Frumberg & Russell, of St. Louis, for relator.

Randolph Laughlin, of St. Louis, and E. McD. Stevens, of Clayton, for respondents.

GRAVES, J. Original action in prohibition. Respondent is circuit judge in St. Louis county. In the St. Louis county circuit court Ernst E. Rombauer instituted a suit against the relator, Brinkman. In that suit the relator appeared specially and raised the question of jurisdiction over his person.

Finding no error in the record. the judg-It stands admitted that both Rombauer and

ment is affirmed.

All concur.

STATE ex rel, BRINKMAN v. MCELHINNEY, Circuit Judge, et al. (No. 21567.) (Supreme Court of Missouri, in Banc. Nov. 19, 1919.)

1. PLEADING 49-CHARACTER OF CASE DEPENDENT UPON ALLEGATIONS OF PETITION.

The character of a suit is determined by the allegations in the petition, the prayer constituting no part of petition for such purpose, though it may be resorted to in determining plaintiff's conception of the petition where language of allegations is doubtful and uncertain.

2. JOINT ADVENTURES 5(2) — ACTION ONE FOR ACCOUNTING AND NOT TO DECLARE CON

STRUCTIVE TRUST.

Petition alleging that plaintiff and defendant engaged in a joint venture to purchase land, that defendant misrepresented cost of land so as to acquire half interest for less than he should have contributed, that defendant sold a portion of the land representing price, to be less than he actually received, that plaintiff purchased defendant's interest in portion of land, and sold his (plaintiff's) interest in remaining portion to defendant, thinking defendant had paid his half of the joint purchase price, and that defendant is indebted to plaintiff for various sums, held, an action in equity for an accounting and not an action to declare and decree a constructive trust.

3. VENUE 5(1)-IN ACTION FOR ACCOUNT

ING NOT AFFECTING TITLE TO REAL ESTATE.

Where action was one in equity for an accounting, and not an action to declare and de

Brinkman are residents of the city of St. Louis, and the whole question turns upon the character of plaintiff's suit, as such character is evidenced by the petition filed. Relator claims it is an action for an accounting between the parties, and therefore a personal action which should have been brought in the city of St. Louis, whilst Rombauer claims it is an action to enforce a constructive trust. The petition in Rombauer's case is somewhat vague and veiled in its terms, and incumbered with a wealth of verbiage, some of which is useless. What a relief to the courts there would be, if lawyers would state their cases in short, concise terms. With some this appears to be a lost art. We shall not undertake to state in substance the petition, although we might adopt with safety the analysis made thereof by relator. The petition reads: "Ernst E. Rombauer, Plaintiff, v. Benjamin G.. Brinkman, Defendant. No. Room 1. "Plaintiff alleges:

"(1) That heretofore, to wit, on or about the day of September, A. D. 1917, he entered into an oral agreement with defendant which he has since fully performed.

"(2) That by the terms of said agreement plaintiff and defendant undertook to purchase on joint account a tract of land lying, being, and situated in the county of St. Louis and state of Missouri, and more particularly de

scribed as follows:

"A tract of land in southwest quarter of section 12, township 44, range 5 east, bounded north in part by Big Bend road and in part by property now or formerly of Tutt, east by the Denny road, south by the section line, and west in part by the Geyer road and in part by property now or formerly of Roschcoe, and property

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now or formerly of Tutt, containing about 136 acres, more or less, and formerly known as Brownhurst.

that it amounted to at least $1,000 in excess of the purchase price so falsely represented and pretended by defendant, and plaintiff be"(3) That by the terms of said oral agree- lieves and alleges that it amounted to very ment plaintiff and defendant each agreed to fur- largely in excess of that sum. That the exnish 50 per cent. of the purchase price of said cess sum received by him, whatever it was, was Brownhurst, and in consideration thereof was by him wrongfully secreted and misappropriatto have a 50 per cent. interest in the proper-ed wholly to his own use. ty if and when purchased, and defendant agreed "(8) That at or about the time said property to act without charge or commission as fiscal was purchased as aforesaid, defendant induced agent or fiduciary of himself and plaintiff in and persuaded plaintiff to purchase from dethe acquisition, handling, and sale of said prop- fendant defendant's interest in a portion thereerty. of, and more particularly described as follows: "Commencing at a point on the south line of section 12, township 44 north, range 5 east, where the same intersects the center line of Denny road; thence along the center line of Denny road, north 1 degree and 40 minutes east 1,286.5 feet to a point; thence north 88 degrees and 30 minutes west 1,253.33 feet to a point; thence south 1 degree and 541⁄2 minutes west 1,286.5 feet to a stone in the south line of said section 12; thence along said section line south 88 degrees and 30 minutes east 1,258.85 feet to the center line of Denny road, the place of beginning-containing 36.21 acres without the roads, no part of the roads above described being conveyed.

"(4) That at the time of the making of said oral agreement, and for long thereafter, plaintiff relied implicitly on defendant, his integrity, and his honor, and did whatever defendant called on him to do, as and when called, in the belief that defendant was acting and would continue to act in faithful discharge of his own obligations under said oral agreement, and was bearing and would continue to bear equally with plaintiff whatever burdens were necessary or proper for their joint account in the acquisition, handling, and sale of said property. "(5) That after the making of said agreement, and during the months of October and November, 1917, the defendant called on plaintiff from time to time to advance and contribute moneys, and represented and pretended to plaintiff that he was himself advancing and contributing moneys in like amounts. That said representations were wholly false, but that|tributed one-half to the purchase price of the plaintiff relied on them and believed them to be true, and in faith thereof advanced to defendant, from time to time during said months, moneys aggregating, to wit, $25,500.

"(6) That defendant, as such fiscal agent or fiduciary, consummated the purchase and acquisition of said property on or about November 30, 1917, and thereupon and thereafter falsely represented and pretended to plaintiff that the real purchase price was, to wit, $98,814.40, consisting of $73,814.40 in cash and $25,000 in the form of a joint note, signed by the plaintiff and defendant, and secured by deed of trust on a portion of said property. That said representation and pretense was false and fraudulent, in that the real purchase price of said property was about $25,000 less than it was represented to be by said defendant. That as a matter of fact the defendant, in gross breach of the fiduciary relation resting on him as aforesaid, so handled and manipulated the transaction that he consummated the purchase of the property wholly with plaintiff's money, and not only that, but he called on plaintiff to advance, and plaintiff did advance, about $5,000 more than was actually needed for the purchase of the entire tract, and defendant wrongfully secreted and misappropriated to his own use the overplus by him so obtained.

"(9) That plaintiff purchased defendant's undivided one-half interest in said property in the belief, induced by defendant's false representations as aforesaid, that defendant had con

entire tract, and therefore had an equitable as well as a legal title to the undivided one-half interest so sold by him.

"(10) That said purchase of said undivided one-half interest led to a controversy between plaintiff and defendant, and, thereafter, to a sale by plaintiff to defendant of plaintiff's interest in the entire tract, but said controversy and sale were both in the mistaken belief, entertained by plaintiff and induced by defendant's fraudulent representations and pretenses as aforesaid, that defendant had contributed one-half to the purchase price of said property, and was therefore entitled to a one-half interest therein.

"(11) That the defendant never at any stage contributed any real money of his own to the joint account in the acquisition of said property, and, while he did sign with plaintiff the $25,000 note secured by deed of trust on a portion of said tract, he thereafter so manipulated the dealings and transactions between plaintiff and himself, touching the remainder of the property, that he caused plaintiff to assume and pay, and plaintiff did assume and pay, said $25,000 note and all the interest notes accompanying the same, and all the burdens imposed by the $25,000 deed of trust securing the same. That the net result of the transaction was that "(7) That at or about the time said property plaintiff bore all the burdens of the enterprises, was so purchased and acquired, defendant, as and was by fraud induced to believe that desuch fiscal agent or fiduciary, sold a portion fendant bore half the burdens thereof, and of said property to the Society of Mary, alias therefore consented to defendant taking the Chaminade College, and at the time and after-legal title to an undivided half interest in said wards falsely represented and pretended to plaintiff that the consideration bargained for and, in fact, received from said sale was, to wit, $26,726.40, and no more. That in truth and fact the defendant received from or in connection with such sale a sum of money which plaintiff is unable to specify further than this,

tract.

"(12) That while plaintiff was the owner of that portion of said tract, which is more particularly described in paragraph 8 hereof, he expended for permanent improvements and betterments thereof sums aggregating about $3,000. That upon the defendant's purchase of

(216 S.W.)

plaintiff's interest in said property defendant tiff is unable to describe the portions so sold had and received the benefit of said improve- or to designate the amount of the profits so ments, betterments, and expenditures. received.

"(13) That on or about October 4, 1918, defendant purchased of plaintiff plaintiff's interest in said tract, as aforesaid, and paid therefor, among other considerations, a check for $10,000, drawn on the Lafayette Southside Bank, and signed by himself. That said check was dated, to wit, October 4, 1918, and was by plaintiff deposited on the same day to the credit of plaintiff's wife in said same bank. That thereupon the receiving teller of said bank entered a credit of $10,000 in the passbook which accompanied said deposit. That said check was no good and that defendant knew it. That after plaintiff left the bank defendant, who is the vice president of said bank, and as such exercises a large control in its affairs, took from said receiving teller said check and the deposit slip accompanying it on some pretense which plaintiff is unable to specify further than this, that he believes it to be or to have been the pretense that defendant wanted to examine into the deposit. That defendant withheld said check for about two weeks, during which time he was able to and did raise money to make it good, and then, and not until then, did he permit it to be credited to the account of plaintiff's wife on the books of said bank. That the account to which plaintiff deposited said check was an interest-bearing account, and defendant knew it. That by said transaction the plaintiff was defrauded by defendant of interest on said $10,000 for about two weeks. That had plaintiff known that said $10,000 check was bogus at the time he received the same he would not have consented to take or to receive the same, nor to have made the deal in which it figured, nor to have sold to defendant his interest in said property. That at the time said bogus check was made good, about two weeks after it was given, plaintiff would not have made said, sale at all on the basis on which he did make it.

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"(14) That if defendant be required to account to plaintiff for all moneys received by him from plaintiff for joint account, and for all moneys received by him from and in connection with sales of said property on joint account, and be permitted to claim credit only for such real moneys or other things of value as he in fact paid to plaintiff or contributed to joint account, it will be found on such accounting that defendant is indebted to plaintiff in a large sum, the exact amount of which cannot be determined until such accounting is had, but which plaintiff alleges will thereupon appear to be in excess of $30,000. That if, on such accounting, defendant be required also to charge himself with all benefits received by him, directly or indirectly, by reason of his connection with the transactions aforesaid, including profits on sales made by him of parcels of said Brownhurst after his purchase of plaintiff's interest therein, and including also betterments obtained by him at plaintiff's expense. and interest of which he defrauded plaintiff, it will be found that defendant is indebted to plaintiff in a much larger sum.

"(16) That defendant still retains in his own name of record a substantial portion of said Brownhurst. That plaintiff is not able to fully, accurately, and precisely describe the portions so retained and owned by defendant, but, in so far as plaintiff is able to identify and describe the same, the said portions are described as follows, to wit:

"A tract of land in the southwest quarter of section 12, township 44 north of range 5 east, described as beginning at a point in the center line of the Denny road, distance south 1 degree 40 minutes, west 2,506.82 feet from the intersection of the center line of the Denny road with the center line of the Big Bend road; thence running south 1 degree 40 minutes, west with the center line to said Denny road 202.29 feet to the south line of said section 12; thence along the south line of said section 12, north 88 degrees 30 minutes, west 2,656.50 feet to the center line of Geyer road; thence along the center line of the Geyer road north 2 degrees 9 minutes, east 1,819.80 feet to the south line of the property now or formerly owned by Tutt; thence along said Tutt south line 88 degrees 30 minutes, east 1,187.65 feet to the west line of property of Chaminade College; thence along the west line of said Chaminade College property south 1 degree 542 minutes, west 1,617.51 feet to the southwest corner of said Chaminade College property; thence along the southwest line of said Chaminade south 88 degrees 30 minutes, east 1,460.29 feet to the place of beginning-containing 55.524 acres more or less, exclusive of roads.

"(17) That plaintiff furnished all the consideration for the acquisition of said property, and that defendant obtained title thereto by fraud and trickery as aforesaid, and now holds said title as trustee of a constructive trust for plaintiff's benefit.

"Wherefore plaintiff prays the courts:

"(1) To try and determine, first, the preliminary issue tendered by this petition of whether or not the defendant is an accounting party to plaintiff, and thereupon to adjudge that the defendant was and is such accounting party, and to decree and order him to make, state, and file before a referee to be appointed for the purpose of taking the accounting his statement of account on a day certain, and to decree the general scope of such accounting, and to order the defendant to charge himself, in such account, with all moneys received by him from plaintiff for joint account, and with all moneys received by him and in connection with the sale to Chaminade College, and with all moneys obtained by him from plaintiff in excess of the moneys necessary to consummate the purchase of said Brownhurst, and with the value of all betterments obtained by him at plaintiff's expense, and with the proceeds of all sales made by him subsequent to his acquisition of plaintiff's record title to said property, and with the fair rental value of the property remaining in his possession during his tenure thereof, "(15) That after his purchase of plaintiff's and with the fair and reasonable value of interest in said Brownhurst, defendant sold the property yet remaining in his possession, portions of parcels thereof for large sums, and with all interest and other sums of from which he derived large profits; but plain- value of which he may be found to have de

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