Opinion
December 12, 1941. Rehearing Denied, February 26, 1942.
1. FRAUDULENT CONVEYANCES: Judgment Necessary: Exceptions. Before seeking to set aside a fraudulent conveyance in equity, the creditor must first reduce his claim to judgment. An exception applies if the amount of the indebtedness is admitted or ordinary process cannot be served on the debtor.
2. FRAUDULENT CONVEYANCES: Abatement and Revival: Death of Nonresident Defendant. The death of the nonresident defendant in an action on a note, the defendant having entered his appearance, did not prevent revival even if the defendant left no property in the State in his name. The plaintiff, as a creditor, could have had the probate court appoint an administrator so that the pending suit could be revived, and the claim reduced to judgment. And after judgment in its favor, plaintiff would be authorized to proceed in equity to attack any fraudulent transfers.
Appeal from Circuit Court of St. Louis County. — Hon. John J. Wolfe, Judge.
AFFIRMED.
Rassieur, Long Yawitz for appellant.
Since Harry Rossen was a nonresident of this state at the time of his death, and since there was no property in this state standing in his name or on which administration could be taken out, and no administration actually was taken out in this state, and since he had conveyed away every piece of property that he had in this state prior to his death, the plaintiff had no remedy at law, and, therefore, this suit in the nature of a creditor's bill, seeking to set aside the various fraudulent conveyances and to subject the properties and moneys therein involved to the payment of Rossen's debt owing to the Bank, properly lies. State ex rel. Brigance v. Smith, 135 S.W.2d 355, 345 Mo. 793; Buckley v. Maupin, 125 S.W.2d 820, 344 Mo. 193; Bewes v. Buster, 108 S.W.2d 66, 341 Mo. 578; Farmers Traders Bank v. Kendrick, 108 S.W.2d 62, 341 Mo. 571; O'Connell v. Smith, 131 S.W.2d 730; Webb Co. v. Midway Lumber Co., 68 Mo. App. 546; Heaton v. Dickson, 153 Mo. App. 312, 133 S.W. 159; Pendleton v. Perkins, 49 Mo. 565; Defield v. Harding Dredge Co., 180 Mo. App. 563, 167 S.W. 593; Ball v. Peper Cotton Press Co., 141 Mo. App. 26, 121 S.W. 798; 38 A.L.R. 269; First Natl. Bank v. Blessing, 98 S.W.2d 149, 231 Mo. App. 288; First Natl. Bank v. Dowdy, 175 Mo. App. 478; Richardson v. Busch, 198 Mo. 174; De Lavergne v. Richardson, 198 Mo. 189; Hill v. Barton, 194 Mo. App. 325; George v. Williamson, 26 Mo. 190; Hawkins Co. v. Quinnette, 156 Mo. App. 153.
Clark M. Clifford and Arthur J. Freund for respondents.
(1) The decree or judgment appealed from is sustainable upon the theory that appellant (plaintiff), as a mere general creditor, failed to plead and prove all of the facts prescribed by law as a condition precedent to the right to maintain a suit in equity to set aside an alleged fraudulent conveyance made by its debtor. Merry v. Fremon, 44 Mo. 518; Mullen v. Hewitt, 103 Mo. 639, 15 S.W. 924; Davidson v. Dockery, 179 Mo. 687, 78 S.W. 624; Gill v. Newhouse, 178 S.W. 495; Palmer v. Marshall, 24 S.W.2d 229; Swift v. Central Union Fire Ins. Co., 279 Mo. 606, 216 S.W. 935; General American Life Ins. Co. v. Leavenworth, 149 S.W.2d 360; Hume v. Wright, 274 S.W. 741; Buckley v. Maupin, 344 Mo. 193, 125 S.W.2d 820; Kent v. Curtis, 4 Mo. App. 121; Dodd v. Levy, 10 Mo. App. 121; Woolfolk v. Kemper, 31 Mo. App. 421; Knox v. Farguson, 97 Kan. 487, 155 P. 929; R.S. 1939, sec. 1438; 14 Am. Jur., sec. 125, pp. 730-731. (2) The decree or judgment appealed from is sustainable upon the theory that appellant (plaintiff), as a mere general creditor, is not entitled to maintain this suit in equity to set aside an alleged fraudulent conveyance by a debtor, now deceased, without first establishing the validity and amount of its claim now pending in the probate court in Chicago, Illinois, against the estate of the debtor. Buckley v. Maupin, 344 Mo. 193, 125 S.W.2d 820.
Roy McKittrick, Attorney General, and Covell R. Hewitt, Assistant Attorney General, amici curiae.
Action in equity to have plaintiff adjudged a creditor of Harry Rossen in the sum of $20,669.74, to set aside the transfer of property to his children as in fraud of creditors, and to subject the property to the payment of the alleged indebtedness. Judgment for defendants and plaintiff appealed.
Defendants include the five children of Rossen and the husbands and wives of children. Plaintiff is the assignee of a $51,000 note executed by Rossen on November 28, 1932. It admits that a credit on the note reduced the same to $20,669.74. The petition in this case was filed on July 9, 1937. At that time there was pending in the circuit court of the City of St. Louis an action by plaintiff against Rossen for the amount alleged to be due on the $51,000 note. The petition in that case was filed October 13, 1934. Rossen entered his appearance in that case, which was continued from term to term. In the meantime Rossen died on October 24, 1936, a non-resident of Missouri.
Defendants contend that the pleading and proof do not authorize a court of equity to set aside the transfer of property. They argue that plaintiff should first reduce its claim to judgment. Plaintiff contends that, under the facts, this case is within exceptions to the rule. Of course, if either the amount of the indebtedness is admitted or ordinary process cannot be served upon the debtor, the rule is without application. (Buckley v. Maupin, 344 Mo. 193, 125 S.W.2d 820; State ex rel. Briganee v. Smith, 345 Mo. 793, 135 S.W.2d 355; General American Life Ins. Co. v. Leavenworth, 347 Mo. 876, 149 S.W.2d 360.)
The execution of the note is not denied. However, the amount alleged to be due on the note is not admitted. Furthermore, Rossen was in court by his entry of appearance. Even so, plaintiff contends that the case could not be revived in the circuit court on the death of Rossen for the reason he left no property in this state in his name. The contention must be overruled. On a proper showing by a creditor of Rossen, it would be the duty of [277] the probate court to appoint an administrator that a pending action might be revived. If revived, the indebtedness, if any, of Rossen to plaintiff could be reduced to judgment. After judgment, plaintiff would be authorized to proceed in equity for a determination of the question of fraudulent transfers of property. (Woolfolk v. Kemper, 31 Mo. App. 421, 424; Lazonby v. Smithey, 151 Mo. App. 285, 292, 131 S.W. 708; Buckley v. Maupin, supra, l.c. 204; Rozell v. Harmon, 103 Mo. 339, l.c. 342, 15 S.W. 432.)
The judgment should be affirmed. It is so ordered. All concur.