author: BROWN", P. J.

text:
    ELLA M. PICKEL v. WILLIAM PICKEL and FREDERICK J. PICKEL, Appellants.
    Division Two,
    June 1, 1912.
    1. APPEAL TO ANOTHER COURT: Evidence. Where the pendency of an appeal from an order allowing plaintiff a certain sum as attorney’s fee in her suit for maintenance is not set up in defendant’s answer or demurrer to her petition to set aside certain conveyances of corporate stocks and to subject them to the payment of her judgment, it will be inferred that, under the statute (Sec. 1800, R...S. 1909), no such appeal is pending, although there is some oral testimony that an appeal was taken.
    2. FRAUDULENT TRANSACTION: Transfer of Stocks to Avoid Execution: Equitable Owner: Gift. A gift by a father of stocks to a married son, in order that he might use the income to support himself and wife, made mostly when they were living happily together, but partly only a few months prior to their separation, and retransferred, without consideration, to the father within a week or two after the wife had separated from the son and her attorney had written to the father asking that some arrangement he made for the support of her and her child, reveals no such equitable ownership in the father, when the court is asked to subject those stocks to execution to pay a judgment in favor of the wife for maintenance, as makes it necessary to consider the legal effect of the contract of re-transfer; because, in fact, there never was a contract between the father and son whereby the father was to retain the equitable title to the stock issued to the son, but the retransfer was simply fraudulent as to her.
    3.-: -: Husband: Obligation to Support Wife and Child. The obligation of the husband to support his wife becomes complete at the marriage and continues after he abandons her without good cause; and the obligation of the father to support his child is complete when the child is born. Neither claimant for such support can be classed as subsequent creditors of the husband or father; 'and a transfer by him of his personal property to defeat the payment of those obligations is fraudulent as to them.
    4. -: -: Filing Amended Petition to Meet Proof. Where after the evidence is closed an amended petition to conform the pleadings to the facts proven is filed, and no effort is made to strike it out, the judgment rests upon such amended petition. And where defendants at the trial changed their testimony as previously given in their depositions, and by stipulation of parties certain issues pending in other kindred suits were engrafted upon the action, and the court by those stipulations was given jurisdiction to determine those issues, it was entirely proper for the court to permit the amended petition to be filed.
    5. -: -: Garnishment: Incomplete Remedy: Maintenance Installments: Impounding Fund: Trustee. Although a wife, who has recovered a judgment against her husband for maintenance, to be paid by monthly installments, has a remedy at law by garnishment against her husband’s father as the fraudulent transferee of her husband’s corporate stocks, yet where such remedy is inadequate she may maintain her suit in equity to have such transfer set aside and to subject the stocks to the payment of her judgment, and to have the court impound the fund thus fraudulently transferred and out of which as a judgment creditor she is entitled to be paid, by placing it in the hands of a trustee to hold, manage and sell for the purpose of paying the monthly installments; and since she could by garnishment reach only so much of the stock standing in the name of her husband’s father as would pay one month’s installment, and must resort to such proceeding only as the monthly installments became due, garnishment is an inadequate remedy.

      6.-: -: Excessive Levy. Where the husband has divested himself of all his property for'the purpose of avoiding the payment of a judgment in favor of his wife for the maintenance of herself and her minor child, by monthly installments; and the conduct of himself and the fraudulent transferee indicates that if any property be left in the hands of either it will, if possible, be placed beyond the reach of the wife, it is entirely proper for the court to sequester all of the husband’s property for the payment of the wife’s judgment, and said decree will not be held to amount to an excessive levy upon his property.
    7. -: -: Attorney's Fee. An attorney’s fee cannot he allowed to plaintiffs attorney, as a part of the decree, in her' suit to set aside a fraudulent transfer of her husband’s corporate stocks and subject them to the payment of her judgment for maintenance.
    8. '-: -^-: Jurisdiction: Part of Maintenance Suit. A suit to set aside the fraudulent transfer by a husband to his . father of certain corporate stocks, brought against both the father and the husband, and to subject those stocks to the payment of the wife’s judgment for maintenance, and to the payment of her judgment for costs and attorney’s fee in his unsuccessful divorce suit, is not a continuation of the maintenance suit. The father was not a party to either of those suits, and the judgment in the divorce suit was wholly disconnected with the maintenance suit.
    9. CONSTITUTIONAL QUESTION: Not Timely Raised: No Specific Part of Constitution Designated. In a suit to set aside a fraudulent transfer of corporate stocks and to subject them to the payments of plaintiff’s judgment for maintenance, the constitutionality of Sec. 8295, E. S. 1909, authorizing the court to sequester a husband’s property and compel him to give security for the support of his wife and child, will not be considered if raised for the first time in the motion for a new trial, nor if no particular clause of the Constitution which renders it invalid is pointed out.
    Appeal from St. Louis City Circuit Court. — How. D. D. Fisher, Judge.
    Aeeibmed (in fart).

      Barclay, Fauntleroy é Cullen for appellants.
    (1) A father has a right to give property to his sou on condition by will or otherwise and retain the title, giving to the ¿son the income, and creditors have no right to complain. Such a gift does not become effective to pass title and may be revoked at any time and the record title put in the donor. Partridge v. Covender, 96 Mo. 452; Roden v. Helm, 192 Mo. 86. (2) A conditional gift does not pass title; hence Frederick J. Pickel never had title to any of the stocks in controversy. The elder Pickel retained the ownership and the right to control said stocks and the certificates were always held in escrow by the Pickel Marble & Granite Company. Albert v. Albert, 21 Mo. 277; Thomas v. Thomas, 107 Mo. 459, 20 Cyc. 1210; Keyl v. Westerhaus, 42 Mo. App. 49; In re Soulard, 141 Mo. 642; Banking Co. v. Miller, 190 Mo. 640; Pennell v. Ennis, 126 Mo. 355i; Godard v. Conrad, 125 Mo. App. 165. (3) A mere expectation of future indebtedness or even an intent to contract debts, if it be only an intent, not coupled with a purpose to convey the property in order to keep it from being reached by the creditors, will not make the conveyance invalid as against such future creditors. Payne v. Stanton, 59' Mo. 158; Pepper v. Carter, 11 Mo. 540'. (4) The general rule is that a voluntary conveyance cannot be set aside at the instance of subsequent creditors, in the absence of proof that the conveyance was made with actual fraudulent intent. Krueger v. Vorhauer, 164 Mo. 156; Caldwell v. Smith, 88 Mo. 44; Scudder v. Morris, 107 Mo. App. 634. (5) The statute on the subject of fraudulent conveyances only applies to the fraudulent transfer of the estate and interest of the debtor in the property, and has no application to a conveyance made solely for the purpose of transferring to the rightful owner property held in trust for him. If a debtor^ holds the legal title to property which in equity belongs to another, his conveyance of the legal title to such equitable owner will not be deemed fraudulent as to the creditors of the former. De Berry v. Wheeler, 128 Mo. 59‘; Aultman v. Booth, 95 Mo. 383; Desmond v. Myers, 113 Mich. 437; Dermott v. Carter, 109 Mo. 21; Bank v. Miller, 24 N. Y. App. Div. 551; Clark v. Rucker, 7 B. Mon. (Ky.) 583; Donohoe v. Hull, 24 Can. Sup. Ct. 683; Mills v. Scott, 43 Fed. 452; Jauch v. De Socarros, 56 N. J. Eq. 538. (6) As shown by the averment of the bill and by the proof, Fred J. Pickel had, at the time he returned the stocks, ample means to meet all his obligations then exist7 ing and all future obligations which he, as a reasonable man, might anticipate, and hence the transfers cannot be set aside and the plaintiff is not entitled to relief in equity. Welch v. Maim, 193 Mo. 325; Walsh v. Ketchum, 84 Mo. 431. (7) The creditor must show that he has failed in the ordinary mode of collection to make his debt, and that, independent of the property so conveyed in fraud of his rights, there is not sufficient to satisfy such debts. For, if it is alleged or shown there is other property sufficient for that purpose, it is an act of capricious intermeddling with the contracts of others to permit the creditor to interfere and set the conveyance aside. Merry v. Fromon, 44 Mo. 518; Somerville v. Heilman, 210 Mo. 574. (8) The petition contains no averment that defendants William Pickel or Fred J. Pickel are insolvent; insolvency is essential to equity jurisdiction, as otherwise there is a complete remedy at law; where one is sought to be charged in equity for conversion of stock in a corporation, it is necessary that the petition allege that the converter is insolvent. Somerville v. Heilman, 210 Mo. 5-67. Plaintiff must show that she has exhausted all remedies at law, because equity- has no jurisdiction where legal remedy is complete.. The allegations in the case at bar show that plaintiff has a remedy at law. In these circumstances no equity appears in the bill. McKee v. Allen, 204 Mo. 674. (9) On the contrary it affirmatively appears that the defendants are uot insolvent, for it is alleged “that defendants are all possessed of practically unlimited financial resources.” Wherefore no cause of action is stated. Somerville v. Heilman, 210 Mo. 567. Property fraudulently transferred is subject to garnishment in the hands of the transferee, and equity will not assume jurisdiction to set aside the transfer. Humphreys v. Atlantic Co., 98 Mo. 549; Hungerford v. Greengard, 95 Mo. App. 659; McDaniel v. Bryan, 123 Mo. App. 640; Dunlap v. Mitchell, 80 Mo. App. 305. Property fraudulently conveyed, and its proceeds, may be reached in the hands of the transferee by garnishment. Epstein v. Clothing Co., 67 Mo. App. 221; Strauss v. Ayres, 34 Mo. App. 255; Organ Co. v. Pettil, 34 Mo. App. 545. (10)’ Equity cannot entertain this proceeding to avoid a multiplicity of suits. The decision in any one action at law settles (so plaintiff pleads) all questions. Because executions may issue every thirty days on a judgment already entered is not a sufficient basis to support an action in equity. Ins. Co. v. Morlman Co., 73 Fed. 68. (11) This decree may be likened unto an excessive levy under an execution, and the same reasons which induce the courts to hold excessive levies illegal should operate to influence the court to hold this decree seizing seven or eight thousand dollars ’ worth of property to satisfy a judgment for a few hundred dollars erroneous and oppressive. 2 Freeman on Executions (3 Ed.), sec. 253. (12) The decree is erroneous because it impounds and sequesters a vast amount of property and requires both tbe corpus and income to be held and applied to the payment ef contingent obligations to fall due in the future. The courts have no power to strip a man of all his property and deny him the right to use it because some years hence he may have to meet a contingent and unmatured demand. Egan v. Fush, 46 La. Ann. 474; Baviere v. Feste, 9 La. Ann. 535; Neilson v. Pool, 17 La. 209.

      Randolph Laughlin for respondent.
    (1) Conceding to appellants the utmost benefit that can be claimed from their own evidence in their own favor, at the time of the original conveyances from William to Frederick, there was no condition precedent attached as a condition of delivery of title which operated to prevent the vesting in Frederick of a full and complete title to all of the property in suit. Beatty v. College, 177 111. 295 ; Doty v. Willson, 47 N. Y. 580; Matter of Hicks, 14 N. Y. 320; Hackett v. Moxley, 65 Vt. 75; Fassett’s Appeal, 167 Pa. St: 452; 20 Cyc. 1210. There is absolutely no evidence tending to show that there was any condition precedent to the vesting of title in Frederick, and no evidence that the property remained the property of William; and the evidence. that there was an agreement or a condition subsequent, whereby William reserved the right to recall his gifts, is overturned by evidence to the contrary. Chambers v. Chambers, 227 Mo. 283; Laughlin v. Leigh, 226 Mo. 640; People v. Board, 245 111. 343, The condition, reservation, or remainder claimed by William Piekel to have been attached to his gifts to his son, was and is null and void on its face. R. S. 1909, sec. 2884. The phrase “goods or chattels” as used in this statute, includes shares of stock. So also does' the word “property.” Fine v. Hornsby, 2 Mo. App. 64; Bernhardt v. Walls, 29 Mo. App. 210; Banta v. Chicago, 172 111. 204; Boardman v. Cutter, 128 Mass. 390; Ayres v. French, 41 Conn. 151; North v. Forest, 15 Conn. 404; Ellison v. Brigham, 38 Vt. 66; French v. Schoonmaker, 69 N. J. L. 6; Kendall v. Kendall, 4 Russ. 370; In re Cold, 80 H. S. 362; Curtis v. Phillips, 5 Mich. 113; Stuart v. Marquis, 11 Ves. 665; Foxall v. McKeanney, 9 Fed. Cas. 646; Blount v. Haney, 43 Mo. App. 652; Cook v. Clippard, 12 Mo. 379; McDermott v. Barnum, 16 Mo. 114. William’s claim was also void as in conflict with the Statute of Frauds, R. S. 1909, sec. 2783. Independent of the above, William’s conduct in holding Frederick forth as the true owner of the property in suit; in permitting him to act as such for more than ten years, and to contract a marriage and become a father on the faith of his apparent ownership, and to thereby incur obligations to respondent, to her child, and to society, which now rest upon Mm in the form of judgments, estops William to now deny the truth of the situation, which he thus proclaimed. McDermott v. Barnum, 19 Mo. 208; Snodgrass v. Emery, 66 Mo. App. 466 ; Busby v. Altes, 140 Mo. App. 718; Camp v. Railroad, 62 Mo. App. 85; Ratican v. Depot Co., 80 Mo. App. 535; Reischick v. Klinghoefler, 91 Mo. App. 430; Huntsucker v. Clark, 12 Mo. 339; Price v. Hallett. 138 Mo. 573; Bank v. Doran, 109 Mo. 491. Marriage and motherhood are valuable considerations, and entitle respondent to invoke the doctrine of estoppel. Lionberger v. Baker, 88 Mo. 447; Bank v. Read, 131 Mo. 553; Nowack v. Berger, 133 Mo. 24. (2) The transfers were fraudulent, and in fraud of respondent’s rights. All of the property transferred belonged to Frederick. He not only did not reserve sufficient property to discharge his debts, but he did not reserve any property at all, except only one share of Pickel Realty stock which was omitted through mistake. Respondent was not a mere subsequent creditor. Her right to support dated from her marriage. A wife who recovers a judgment for support or alimony is a creditor of her husband within the purview of the statute governing fraudulent conveyances, and a conveyance made by him which is either voluntary, or made with the intent to defeat the collection of her judgment, and after ground for suit has arisen in her favor, is invalid as to her claims under the judgment, and it is immaterial whether the conveyance was made before or after the institution of her suit. Maze v. Griffin, 65 Mo. App. 385; 17 Century Digest, Divorce, sec. 749, 753; 14 Cyc. 798. Even if the amendment were improper, appellants waived the point by failure to move to strike out. Grimes v. Lumber Co., Ill Mo. App. 358. The defense of adequate remedy at law is not available to appellants, because this suit was specifically authorized by the statutes, R. S. 1909, secs. 8295, 8301, 2881; and because it was also a case for the exercise of equity jurisdiction to avoid a multiplicity of suits. 1 Pomeroy’s Eq. Jur.. (1905) secs. 243, 250, 252; Peterson v. Fleming, 63 111. App. 357. Appellants voluntarily abandoned this defense by stipulating that the proceedings at law should be dismissed, and that this court should determine the status of all the property involved therein. The conveyances being voluntary, it was sufficient impeachment for respondent to show that they were made without valuable consideration and that they hindered or delayed her as a creditor. This showing made those conveyances fraudulent in law, irrespective of the motives of the parties. Porter v. Wagner, 125 Mo. 4501; Johnson v. Murphy, 180 Mo. 597; Seharff v. McGaugh, 205 Mo. 366; Patten v. Gasey, 57 Mo. 118; Hurley v. Taylor, 78 Mo. 238; Bohannon v. Combs, 79 Mo. 305. But respondent went beyond the limits of this requirement, and proved not only the fraudulent intent of Frederick, but also the fraudulent participation and intent of William. Gust v. Hoppe, 201 Mo. 293; Bank v. Fry, 216 Mo. 24; Bank v. Worthington, 145 Mo. 91; Yan Raalte v. Harrington, 101 Mo. 602; Henderson v. Henderson, 55' Mo. 534; Simon v. Schooley, 66 Mo. App. 406. In transactions between parties bearing a close personal relation to each other, such as parent and child, courts of equity apply the most rigid scrutiny when there is a charge of fraud. Bank v. Fry, 216 Mo. 42; Farwell v. Meyer, 67 Mo. App. 566. (3) The scope of the decree was not excessive, and was necessary to do justice to respondent on the showing made. The court would have been fully justified in appointing a sequestrator or trustee. Donnelly v. West, 17 Hnn. 564; Bank v. Walker, 7 Ala. 926; Taylor v. Dwyer; 131 Ala. 91; Roberts v. Stoner, 18 Mo. 491; Fitcb v. Bank, 99 Ind. 443; Anderson v. Trust Co., 25 Wash. 20'. There is also authority for the less harsh and burdensome remedy of injunction, which the court adopted. Errissman v. Errissman, 25 111. 119; Draper v. Draper, 68 111. 17; Questel v. ■ Questel, Wright (Ohio), 492. The old chancery practice of sequestration is not violative of any constitutional guarantees, and is firmly rooted in Missouri law. R, S. 1909, secs. 288, 2110, 2122, 2375, 8295; Roberts v. Stoner, 18 Mo. 491; Henderson v. Dickey, 50 Mo. 165; State ex rel. v. Horner, 16 Mo. App. 193; In re Kinsolving, 135 Mo. App. 639; White v. Geraerdt, 1 Edw. (N. Y.) 336; 19 Ency. PI. & Pr., p. 545. Equity may adapt its relief to the circumstances of the case, and there is no limit to the variety of its decrees. 16 Cyc. 478; Woodruff v. Mining Co., 18 Fed. 753. Installments of money falling due under a decree at regular intervals are likened to annuities, and a decree in equity to enforce their payment should not be limited to the recovery of arrears, but should be extended so as to embrace 'and secure future installments. Maher v. G’Hara, 9 III. 424; Peterson v. Fleming, 63 111. App. 357; Marshall v. Thompson, 2 Mumf. (Va.) 413; Townshend v. Duncan, 2 Bland Ch. (Md.) 45; De Graw v. Clason, 11 Paige (N. Y.) 136; Brandon v. Brandon, 46 Miss. 222. In a case of this character, where a fund is recovered or brought into court, the costs are not limited to costs made taxable by statute, but embrace all legitimate expenses, including attorneys’ fees, which may be allowed either under the general prayer, or under the prayer for costs. Rumsey v. Frank, 84 Mo. App. 512; Woodard v. Mastín, 106 Mo. 364; Ins. Co. v. Delatorre, 70' Fed. 645; Lillard v. Oil Co., 58 Atl. (N. J.) 189; Mason v. Alexander, 44 Ohio St. 337; Ex parte Plitt, 2 Wall Jr. C. C. Rep. 479; Woodruff v. Railroad, 129 N. Y. 27; Downing v. Marshall, 37 N. Y. 380; Henderson v. Dickey, 50 Mo. 164. There is an inherent power in a court of equity to allow counsel fees ■ and expenses, in addition to court costs, whenever the equities of the case make such allowance necessary to the doing of complete justice. Kirn v. Railroad, 124 Mo. App. 276; Little v. Trust Co., 146 Mo. App. 589; Mason.v. Alexander, 44 Oh. St. 337. "Where a conveyance by a debtor is set aside as fraudulent at the suit of a creditor, and the property is subjected to the payment of the creditor’s claims, a proper case is presented for the exercise of the power in question, and the creditor’s attorney should be allowed a fee out of the proceeds of the property reached by the suit. Trustees v. Greenough, 105 U. S. 533; White v. Land Co., 49 Mo. App. 468; 20 Cyc. 825, notes 47, 48, 49; Fechheimer v. Baum, 43 Fed. 719; Lawton v. Perry, 45 S. C. 319; Woodruff v. Railroad, 129 N. Y. 27; Olds v. Tucker, 35 Ohio St. 581; Railroad v. Peters, 113 U. S. 122. To charge the fee against the res was proper. Woodard v. Mastin, 106 Mo. 364; Rumsey v. Frank, 84' Mo. App. 513; Trustees v. Greenough, 105 U. S. 527. It was the duty of the circuit court to allow and tax the fee. Padgett v. Smith, 207 Mo. 236; Little v. Trust Co., 146 Mo. App. 589; little v. Bank, 231 Mo. 208. It would have been reversible error to omit to tax this fee in this case. White v. Land Co., 49 Mo. App. 468; Robinson v. Dundee Co., 80 Mo. App. 621; Meddaugh v. Wilson, 151 U. S. 333; Lawton v. Perry, 40 S. C. 255; Weigand v. Supply Co., 4 W. Va. 133; 3 Am. & Eng. Ency. Law (2 Ed.) 458; Tuttle v. Claflin, 86 Fed. 964; United States v. Boyd, 79 Fed. 858; Campbell v. Society, 54 L, R. A. 817.
   BROWN", P. J.

Action in equity to set aside conveyance of corporate stock and to subject said stock to payment of judgments. From a decree for plaintiff, defendants appeal.

This action grows ont of prior litigation between plaintiff Ella Pickel and defendant Frederick J. Pickel in the circuit court of St. Louis city.

On June 22nd, 1910, plaintiff seperated from her husband, Frederick J. Pickel, and retained the custody of their only child, a son, of the age of sis years. In November, 1910, plaintiff instituted against defendant Frederick J. Pickel, a suit for maintenance of herself and child, under section 8295, Revised Statutes 1909. In that suit she was allowed $80 per month for her maintenance during the pendency of the action, and upon the final hearing thereof, on March 15th, 1911, she was awarded $100 per month for the permanent support of herself and said child, together with costs of the action.

This final judgment for support and maintenance of plaintiff and her child was rendered by Division No. 3 of the circuit court of St. Louis City, and at the time of entering said judgment, said trial court retained jurisdiction of the subject matter and parties to the action, and leave was granted to each of said 'parties to apply for such supplemental or additional orders as they might think necessary for the protection and enforcement of their rights under the judgment.

This part of the decree for maintenance is of some importance, in view of the contention of defendants that the judge who tried the present action did not sit-in Division No. 3 of the circuit court of St. Louis City, and therefore, possessed no jurisdiction of this action, one of the purposes of which is to aid in carrying into effect the decree for maintenance.

On March 27th, 1911, said Division No. 3 of the circuit court of St. Louis City entered a further order in said action for maintenance, allowing to plaintiff therein the sum of $750' for attorneys’ fees in prosecuting said cause.

There is oral evidence that an appeal was taken from said allowance of attorneys’ fees, but such evideuce is unsatisfactory; and as the pendency of such appeal is not set up in defendant’s demurrers nor in their answer in this cause, we will infer that no such appeal is pending. [Sec. 1800, R. S. 1909.]

On October 25th, 1910, defendant Frederick J. Pickel instituted a suit for divorce against plaintiff. On January 14th, 1911, the circuit court of St. Louis City rendered a judgment awarding plaintiff $400 for suit money and attorneys’ fees in said divorce suit. On February 7th, 1911, Frederick J. Pickel dismissed his divorce suit, and the costs of that action, amounting to $290.85, were taxed against him. No appeal was taken from said allowance of suit money and attorneys’ fees, nor from the judgment for costs.

Defendant Frederick J. Piekel, having failed to pay some of the installments of the judgment for maintenance and the judgment given in plaintiff’s favor for attorneys’ fees, suit money and costs in the divorce suit, plaintiff caused execution to be issued on said judgments, and levied upon five shares of stock in the Pickle Marble & Granite Company, standing in the name of defendant, William Pickel, but which had been transferred to him by his son, Frederick, after the latter was separated from his wife. Upon the seizure of said stock, defendant William Pickel lodged with the sheriff of St. Louis City written claims as owner of said stock. The plaintiff duly filed with the sheriff her indemnifying bonds under each of said executions; whereupon defendant William Pickel, to prevent a sale of the stock so levied on, executed and delivered to said sheriff his bonds, conditioned for the safe-keeping and preservation of said stock, and that same should be produced when and where the court might direct, as provided by section 2204, Revised Statutes 1909. These claims and bonds were returned by the sheriff to the court out of which the execution issued, and the claims of William Piekel to the ownership of said stock are now pending as independent actions between plaintiff and William Pickel in the circuit court of St. Louis City. However, by stipulation of the parties, the claims of plaintiff and defendant William Pickel in the actions’growing out of the aforesaid executions shall be considered and determined in this action.

The object of this action is to set aside transfers of corporate stock of Frederick J. Pickel to his father, William Pickel, which transfers are alleged' to have been made to defeat plaintiff’s claim for support of herself and child. Said stock so alleged to'have been fraudulently transferred is described as follows:

' Seventy-five shares of the capital stock of the Pickel Marble & Granite Company, a corporation, of the par value of $7,500, but of the actual value of at least $15,000;

Ten shares of the capital stock of the German American Bank, of the par value of $1,000, and of the actual value of about $2,000;

Five shares of the capital stock of the Broadway Savings Trust Company, of the par value of $500' and of the actual value in excess of $1,000';

Fifteen shares of the capital stock of the St. Anthony Improvement Company of San Antonio, Texas.

Upon final hearing the court dismissed the plaintiff’s bill as to the defendant Pickel Marble & Granite Company, and plaintiff did not appeal from that part of the judgment.

The judgment below in this case was rendered July 24, 19.11, and finds that defendant Frederick J. Pickel is insolvent and execution proof except as to the corporate stock hereinbefore described; and further finds that said stock was fraudulently transferred by said defendant Frederick J. Pickel to defendant William Pickel for the purpose of hindering, delaying and defrauding plaintiff of money to become due her under such judgments as have been rendered in suits then contemplated.

The judgment herein finds that there is due plaintiff for attorneys’ fees in the divorce suit instituted against her by defendant Frederick J. Piekel, the sum of $350, also $380 as balance awarded to her for maintenance of herself and child up to and including July 1st, 1911, also the sum of $760.10, balance on attorneys’ fees and suit money allowed to her for prosecuting the action for maintenance, together with the further allowance in the sum of $500, for attorneys’ fees in prosecuting this action to set aside the fraudulent sale of corporate stock, making a total indebtedness of defendant Frederick J. Piekel, to plaintiff, exclusive of interests on said judgments and allowances, the sum of $1990.10.

The judgment of the circuit court directed defendant William Piekel to pay to plaintiff within ten days all of the amounts due her under the judgments, orders and allowances above recited and to give bond to plaintiff in the sum of $10,000', for the payment of such furture installments of the judgment for maintenance as might become due to her. Defendant William Piekel was also enjoined from transferring the corporate stock fraudulently conveyed to him by his son.

1. The defendant admits that the corporate stock in controversy was transferred by Frederick J. Piekel to his father, William Piekel, about August 1st, 1910, but contends that the transfer was not fraudulent as to plaintiff, for the reason that William Piekel was at all times the equitable owner of said stock, and had merely caused it to be issued to his son Frederick to enable the latter to receive the dividends which might accrue thereon. That at the time said stock was placed in Frederick Piekel’s name there was ah express understanding between the son and father that the father should retain the equitable title to said stock and that the same should be retransferred to him at any time he might for- any cause so request.

Defendants ¡also rely upon the following additional grounds to secure a reversal of the judgment entered below:

2. That the obligation of defendant Frederick J. Pickel to support his wife (the plaintiff), and her child (their mutual offspring), places her and her child in the position of subsequent creditors and does not render invalid the transfer of stock to his father, even if such was really transferred without consideration.

3. That the plaintiff’s petition does not recite any facts which if true will sustain the judgment.

4. That even if it be true that defendant Frederick J. Pickel has transferred his stock to William Pickel for the purpose of defrauding plaintiff, she has a complete and adequate remedy at law by garnisheeing William Pickel as the fraudulent transferee of said stock.

5. That the petition and evidence do not show that defendant Frederick J. Pickel is insolvent.

6. That the decree in this casé amounts to an excessive levy upon the property of defendants, and is so unreasonable that it should be reversed.

7. That the allowance of attorneys’ fee of $500' to plaintiff for prosecuting this action is not within plaintiff’s pleadings, and is erroneous and illegal.

8. That the trial court did not have jurisdiction in this action, because it is a continuation of the original action for maintenance, and should have been brought and presented before the judge of Division No. 3 of the circuit court of St. Louis City.

Such further points in the pleadings and evidence as are necessary to a full understanding of the case will be noted in our opinion.

OPINION.

It will be entirely unnecessary to determine the legal effect of the alleged contract by Frederick J. Pickel to retransfer to his father the corporate stock issued to Frederick. The evidence fully satisfies us that no such contract was made at the time such stock was issued to huh. '

Aside from the inherent improbability of such an agreement having been entered into, the evidence of Frederick and "William Pickel themselves establishes the fraudulent character of the transfer of the corporate stock in dispute from Frederick Pickel to William Pickel almost as completely as if they had confessed in open court the charges contained in plaintiff’s petition.

It is proven that the plaintiff left the home of her husband and returned to her mother, at Chicago, Illinois, with her son, on June 22, 1910. Within a few days thereafter, she employed an attorney, who wrote letters to both Frederick and William Pickel, notifying them that plaintiff would no longer live with her husband, and asking some arrangement be made for the support of herself and child.

During July, 1910, a consultation was held in St. Louis between the attorney for the plaintiff and Frederick J. Pickel and his attorney, looking toward a settlement of the plaintiff’s claim for support; but those negotiations did not result in any agreement.

About the 1st of August, 1910', Frederick retransferred to his father the corporate stock déscribed in plaintiff’s petition. This corporate stock had been given or donated to Frederick Pickel by his father William Pickel, in amounts and on the dates following:

In Pickel Marble & Granite Company, 25 shares on March 17, 1900;

In the same company, 20 shares on March 27, 1902;

In the same company, 30 shares on July 7, 1906';

In the German American Bank, 10 shares on February 15, 1910.

In the Broadway Savings & Trust Company, 5 shares on January 31, 1905'.

At the trial of this action on July 24th, 1911, both Frederick J. Pickel and William Pickel testified that at the time these shares were given to Frederick there was an understanding between said fathér and son that the father was to retain the equitable title to all of said shares; that the transfers were only made to enable the son to receive the dividends thereon and that at any time the father might so desire, the stock should be retransferred to him.

On September 20, 1910, the deposition of Frederick J. Pickel was taken under a stipulation, and in that deposition Frederick Pickel admitted that the stock was a gift from his father, and when asked by plaintiff’s counsel why he retransferred it to his father, he replied: ‘‘I didn’t like your program; I didn’t know what was in future for me. My father had given it to me, and I gave it back to him. Q. What program? A. Well the letters you were writing. I didn’t know what was in future for me, and I turned it over to him. Q. Do you mean the letter I wrote to you or to Mr. Noonan? A. Well the character of all of it. Q. Did you tell your father about it? A. No further than the one he had gotten from you. Q. He told you that he had received a letter from me? A. Certainly.”

In giving his evidence in the action for maintenance on March 4th, 1911, before the present action was instituted, defendant Frederick Pickel testified as follows :

££Q. State what was said by you and your father at the time the certificates were issued? A. Well, he told me he wanted to encourage me in business, and I must not sell the stock; that they would probably pay a dividend to help me along.

££Q.. State all that was said. A. The conversation was along, that line, that he wanted to encourage me in business; wanted me to work hard; that this was valueless unless I worked hard and made money so that they could render a dividend. He did not want me to sell it.

“Q. State all of the conversation, if you have not. (Plaintiff’s counsel objects to the question as leading. Objection overruled). A. He said that if at any time I misbehaved myself, as he put it, didn’t do right or sold any of the stock, he would not give me any more.”

The deposition of defendant William Pickel was also taken on November 30,1910, in which, when called upon to explain why the stock in controversy was re-transferred to him by his son, he testified as follows:

“Q. Did you have any conversation with your son at or about the time of these transfers? A. Yes, sir.

“Q. What was said in that conversation? A. I said to him, ‘I have advanced you a good deal of money and you have no way of paying it back, and you had better transfer those stocks back to me to get even;’ and he was willing to do that; and done that.

“Q. Was that before you received a letter from me? A. Afterwards.

“Q. How long after you received a letter from me? A. Maybe a couple of weeks.

“Q. Did you make any answer to the letter you received from me? A. No, sir.

“Q. I understood you to say awhile ago, Mr. Pickel, you did not lend your son any money; you simply gave it to him. A. That is so. He had no way of paying it back. I just gave it to him. •

“Q. You kept no track of the amount you gave him? A. No, sir.

“Q. Did you at the time of transferring these stocks know how much money you had given him? A. I figured it up in my head, and in the last four or five years, and I came to the conclusion he ought to return those stocks to make it square in the family.

“Q. 'Have you told everything that ivas said at the time this transfer was madel A. I think I have.

“Q. What did your son say at that time? A. I didn’t speak to him at the time about your letter or anything else; didn’t want to talk about it.

“Q. Did he say anything at all when you told him you wanted him to transfer those stocks? A. I think it was my proposition to do that after I got your letter.

“Q. Did my letter cause you to make that proposition? A. Well, your letter and other points together helped to bring it on”.

In the present case after testifying most positively that he retained the equitable title to the stock in controversy when he caused it to be issued to his son, defendant William Pickel was asked the following questions and gave the following answers:

“Q. At the time you were asked these questions and gave these answers, at the time this deposition was taken before Mr. Hennings, did this occur: ‘Q. Did you say anything else when you told him you wanted him to transfer those stocks? A. I think it was my proposition to do that after I got your letter.

“ ‘Q. Did my letter cause you to make that proposition? A. Well, your letter and other points helped to bring it on.

“ ‘Q. What other points helped to bring it on? A. Advancing him money these last four or five years out of my pocket.

“ ‘Q. Anything else? A. Nothing else.’

“Q. Did you so testify? A. Yes, sir.

“Q. Was it true? A. I think so, as far as I remember.

“Q. Then, if the prior arrangement or agreement made between you and him by which he was to retransfer those stocks to you on request, when you were a’sked these questions as to why you caused this transfer to he made, why didn’t you then tell about that kind of an agreement? A. Maybe I didn’t think of it.

“Q. Didn’t think of it? A. No.

“Q. ' You had forgotten it, hadn’t you? ‡.. I suppose so.

“Q. You didn’t remember it until you employed Messrs. Barclay, Pauntleroy & Cullen as your attorneys in this case ? A. They had nothing to do with it all.

“Q. I know; but you didn’t remember it until after you employed them; then you thought about it and told Mr. Cullen? A. I don’t remember any conversation with Mr. Cullen about that.

“Q. When did you first remember that kind of an agreement?' A. Never spoke to Mr. Cullen about it.

‘ ‘ Q. Whom did you speak to about the agreement first? A. Nobody.

“Q. Never mentioned a word about it to anybody before you went on this stand? Is that right"? A. Yes, sir. ” v

Further testifying in this case, defendant William Pickel said:

“Q. Why didn’t you have your son transfer that stock to you before his. wife ran away? A. Well, I had it transferred to him while he was living with her; I supposed they were going to live together. That was the purpose of transferring the shares to him, to help them along; paid all his bills, doctor bills and everything.

‘ ‘ Q. You wanted to help him take care of his wife and child as long as she lived with him? A. I wanted to take him up and help him along.

“Q. Why didn’t you have that transfer made back to you before she left him? A. I don’t know anything about that.

££Q. Did her leaving him have anything to do with yonr causing him to transfer it back? A*. No, I suppose not,

££Q, You suppose not? A. No.

“Q. You can’t give any reason how it is that you happened to cause him to transfer it at the time he did, can you? A. No, I can’t give any reason; no.

££Q. You can’t explain it at all? A. No, sir.”

The evidence of William Pickel further shows that he had given corporate stock to another son and also his daughters; but those gifts were entirely unconditional and accompanied by no obligation to retransfer to the father.

William Pickel testified that the aggregate value of the stocks retransferred to him by his son Frederick about August 1st, 1910, was $7225; other evidence indicated that it was worth more.

Another item of evidence in the case is that at the time plaintiff separated from her husband, the Pickel Marble & Granite Company, of which defendant William Pickel is the principal owner, were paying him for his services a salary of $150 per month. When the litigation between plaintiff and Frederick Pickel was initiated his salary was cut to $75 a month, and subsequently he was dropped from its pay-roll altogether.

There was other evidence, not necessary to recite, which satisfied the trial judge and satisfies us also that no contract was ever made whereby William Pickel was to retain the equitable title to the stock issued to his son Frederick.

II. The obligation of Frederick J. Pickel to support his wife (whom the trial court found he had abandoned without good cause), and his further obligation to support his infant child, were matured obligations at the time the corporate stock in controversy was fraudulently transferred to William Pickel. The obligation of a husband to support his wife becomes complete at their marriage, and the obligation of the father to support his child is complete when such child is horn. Such claims for support can not he classed with “subsequent creditors.” [Maze v. Griffin, 65 Mo. App. 377.] The laws of our State recognize these claims as of the most binding force and for their payment, no property of the husband is exempt. [Sec. 8296, R. S. 1909.]

III. Defendants contend that plaintiff’s petition does not specifically allege the fraudulent acts against which she seeks relief. After the evidence was closed, plaintiff, by leave of court, filed an amended petition so as to conform her pleadings to the facts proven. No effort was made to strike out this amended petition as a departure; consequently the judgments rests upon the amended petition. We find it was entirely proper under the facts in this case to permit snch an amended petition to be filed. Not only did the defendants change their evidence as previously given in their depositions, but by stipulation of the parties certain issues pending in other suits were engrafted upon this action, and the court was given jurisdiction by such stipulation to determine same in this case. [Sec. 1848, R. S. 1909.] The amended petition states grounds for equitable relief, and defendant’s general attack upon it is disallowed.

IV. While it is true that the plaintiff has a remedy at law by garnishment against defendant William Pickel as the fraudulent transferee of the corporate stock in controversy, such remedy is entirely inadequate under the facts in this case.

If the plaintiff’s judgment for maintenance had been rendered for a gross sum, she would perhaps have an adequate remedy by garnishment against William Pickel as the fraudulent holder of Frederick J. Pickel’s stock, but her judgment is not for payment of a gross sum, but for payment of $100 monthly.

With the legal title to the corporate' stock standing in the name of William Pickel, plaintiff could by garnishment only reach a sufficient amount of said stock to pay the installments due her on her judgment for maintenance, and she would have no assurance that William Pickel would hold the stock until other installments of her judgment for maintenance became due.

The evidence shows a determination upon the part of defendant William Piekel to defeat plaintiff’s claim for support of herself and child by any means within his power. By filing third party claims to the stock levied upon, he had needlessly brought about a multiplicity of suits, and if this practice were persisted in it would cost plaintiff more to collect her judgment than she would receive. The arm of a court of equity would be short indeed if it could not put forth its hand and impound a fund out of which plaintiff is entitled to relief as a judgment creditor after she has uncovered such fund in the hands of a person to whom it was fraudulently transferred to defeat her judgments, and to compel Frederick J. Pickel to give security for plaintiff’s support.

We hold that the trial court has a right to appoint a trustee to take charge of, hold, manage, and sell the corporate stock in controversy to pay the installments of plaintiff’s judgments for maintenance as they become due.

V. The amended petition filed by plaintiff recites that defendant Frederick J. Pickel has transferred all his property which possesses any value to his codefendant William Pickel; consequently, his insolvency is fully charged in said petition.

VI. “That the decree amounts to an excessive levy upon defendant’s property.”

Under the peculiar facts of this case this point deserves very little consideration. The laws of our State and the demands of civilized society require defendant Frederick J. Pickel to support his wife and child; and having divested himself of all his property for the purpose of evading those obligations, he should not be heard to complain of a decree which places property thus fraudulently transferred in the hands of a trustee, to the end that so much of such property as is necessary may be applied in support of his family. The evidence shows that defendant Frederick J. Pickel is thirty years of age, of fair business experience, and able to support himself and family, if he applies his talents to that end.

The conduct of both defendants establishes the fact that if any of the property of Frederick J. Pickel be left in the possession of either him or his father, it will, if possible, be placed beyond the reach of plaintiff. Under such condition of affairs, if is entirely proper for a court of equity to sequester the property of plaintiff’s husband.

VII. The allowance in this action of an attorney’s fee of $500 to plaintiff for prosecuting this action is not supported by any rule of law or equity to which our attention has been called.

“Upon a conveyance by a debtor being set aside as fraudulent, at the suit of a creditor, and a sale of the property being ordered, the creditor’s attorney may be allowed a fee out of the proceeds, but such fee should be paid out of that part applicable to the de1-mands of creditors, and not out of such balance as may come to the debtor after the liquidation of the debts proven and passed.” [20 Cyc. 824.]

That part of the judgment entered below which awards an attorneys’ fee to plaintiff for prosecuting this action, is erroneous.

VIII. The defendants assert that the circuit court-possessed no jurisdiction of the suit, because it is a continuation of the plaintiff’s action for maintenance, in which last named action the trial court retained jurisdiction of the parties and subject-matter. This contention is much more subtle than substantial.

In the action for maintenance the trial court did not acquire jurisdiction of the fraudulent transfer of the corporate stock William Pickel, nor did it have jurisdiction of said William Pickel. One of the purposes of this action is to subject the corporate stock of defendant Frederick J. Pickel to the payment of part of the attorney’s fees and suit money awarded to plaintiff in the divorce suit; which award is a matter wholly disconnected from the action for maintenance. We rule this point against defendants. [Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226, l. c. 236.]

IX. Defendants in their motion for new trial attempt to challenge the constitutionality .of that part of section 8295, Revised Statutes 1909, which authorizes the court to sequester a husband’s property and compel him to give security for the support of his wife and child. This belated effort to nullify said section 8295, must be disregarded for two reasons: (1) It was not called to the attention of the trial court in a timely manner. [Hartzler v. Railroad, 218 Mo. 562] (2) The motion for new trial does not designate the particular clause or provision of the State and Federal Constitutions which render said section 8295, Revised Statutes 1909, invalid. [State v. Brockmiller, 107 Mo. App. 600; Hulett v. Railroad, 145 Mo. 35.] Therefore, this point is not before us for review.

That part of the judgment of the trial court which awards and allows an attorney’s fee of five hundred dollars to plaintiff’s (respondent’s) attorney for prosecuting this action, is reversed, and the judgment of said trial court is in all other respects affirmed.

Ferriss and Kennish, JJ., concur.


source: Caselaw Access Project

author: LEAVES, J. LAMM, J.

license: Public Domain

text:
    THE STATE ex rel. DANIEL D. HUNT and MABEL HUNT v. J. HUGO GRIMM et al.
    In Banc,
    June 10, 1912.
    1. FRAUDULENT DEED: Cloud: Removal: Virginia Lands: Impounding Deed: Jurisdiction. The petition alleged that plaintiff had signed, acknowledged and delivered a deed conveying, for a recited consideration of $16,000, to Mabel A. Hurt certain lands in Virginia, and that after the delivery of the deed the defendants (Daniel D. Hunt and Mabel R. Hunt) fraudulently changed the name of the grantee Mabel A. Hurt (a fictitious person) to Mabel R. Hunt and then recorded the deed; that the consideration of $16,000 had not been paid; that the deed was obtained by an abuse of the confidence the plaintiff had reposed in said Daniel D. Hunt; that the deed constituted a cloud upon plaintiff’s title; and prayed that it be cancelled, ordered to be surrendered and by the court impounded. Held, that the action is one to annul and cancel a deed and thereby to remove a cloud upon plaintiff’s title, and that since the deed is recorded an order impounding it would avail nothing; and since the land is in Virginia, though both plaintiffs and defendants are residents of the same county in Missouri, the circuit court has no jurisdiction over the subject-matter of the suit.

      Held, by LAMM, J., with whom KENNISH, J., concurs, that, giving the petition a liberal construction, it states a cause of action in equity to avoid a real estate transaction for fraud and to have a certain deed declared void as a conveyance; and of that the Missouri court has jurisdiction.
    2. -: Cancellation: Lands in Another State: Jurisdiction. A Missouri court of equity has no jurisdiction to cancel for fraud a deed to lands situate in another State, though all the parties ■ may reside here. A decree annulling the deed acts directly upon the title of the land. And though there be an allegation of a fraudulent change in the name of the grantee, after delivery and before record, and that change is in law a forgery, yet the petition showing on its face that the land is situated in another State and the deed recorded only there, the circuit court will be restrained by prohibition from assuming to exercise jurisdiction over the subject-matter.
    Prohibition.
    Writ allowed,

      Seddon & Holland for relators.
    (1) Action affecting the title to real estate must be brought in the State in which the lands are located. Brown on Jurisdiction, p. 131; Story on Conflict of Laws, p. 545. (2) Under the statute of Missouri and the decisions of this court, suits affecting the title to real estate must be brought not only in the State in which the lands are located, hut in the county in which they are located. Sec. 1753, R. S. 1909; Castleman v. Castleman, 184 Mo. 432; Ensworth v. Plolly, 33 Mo. 370; Keyte v. Plemmons, 28 Mo. 104; State ex rel. v. Muench, 225 Mo. 219. (3) If the circuit court of the city of St. Louis' has no jurisdiction to try this suit involving the title to real estate located in Virginia, prohibition is the proper relief. State ex rel. v. Muench, 225 Mo. 219.

      R. M. Nichols for respondent.
    (1) The circuit court had jurisdiction of the parties — they both resided in Missouri — and pf the res, the purported deed being in the State. It can order the purported deed canceled and impounded. The title is not involved. The deed conveyed to defendants no title. McCune v. Goodwillie, 204 Mo. 306; Noble v. Grandin, 125 Mich. 388; McGee v. Sweeney, 84 Cal. 100; King v. Pilliow, 90 Tenn. 287; Ivernis v. Leavitt, 23 Barb. 63; Jacobs v. Ref. Co., 93 N. T. Supp. 776; Grant v. Copper Co., 193 N. V. 306; De Klyn v. Watkins, 3 Sandf. Ch. 185; Barker v. Rockabrand, 118 111. 365; Cloud v. Greasley, 125 111. 313; Hays v. O ’Brien, 149 111. 403; MacDonald v. Dexler, 234 111. 517; Fall v. Fall, 95 Mich. 104; Saltón Sea Case, 172 Fed. 792; Wilhite v. Skelton, 149 Fed. 67; Carpenter v. Strange, 141 U. S. 105; Falls v. Eastin, 215 U. S. 1; Proctor v. Proctor, 69 L. R. A. 673; Falls v. Eastin, 23 L. R. A. (N. S.) 925; Burton Co. v. Patton, 27 L. R. A. (N. S.) 420; Hodges v. Hunter Co., 34 L. R. A. (N. S.) 994; Burnley v. Stevenson, 24 Oh. St. 474; Dunlap v. Byers, 110 Mich. 109; Pillow v. King, 55 Ark. 633; Ewing v. Lanxpkere, 147 Mich. 659; Campbell v. Lumber Co., 140 Ky. 312; Joy v. Bank, 128 N. W. (S. D.) 147; Clark v. Fruit Co., 185 Fed. 604; Manley v. Carter, 7 Kan. App. 86. (2) The purported deed conveyed no title. It was not delivered. The spoliation rendered the purported deed void. It did not divest the title out of the plaintiff. Hord v. Taubman, 79 Mo. 1; Koons v. Car Co., 203 Mo. 259; Medlin v. Platt Co., 8 Mo. 232; Paul v. Leeper, 98 Mo. App. 515. (3) If the forged or altered deed could be held to be merely a voidable instrument, and the possession obtained, as shown by the allegations, a sufficient delivery, it would be a mere cloud upon the title, and under such circumstances a court of equity has jurisdiction to remove a cloud upon the title of a piece of property situated without its jurisdiction where it has jurisdiction of the parties. Payne v. Sav. Assn., 198 Mo. 617; State ex rel. v. Elliott, 80 Mo. 658; Christopher v. Sav. Assn., 180 Mo. 572; Eemer v. Mackay, 35 Fed. 86; Kirkliu v. Loan Assn., 60 S. "W. 149; Trust Co. v. Sihler, 34 Ind. App. 140; Williams v. Fitzhugh, 37 N. Y. 444; Williams v. Ayrult, 31 Barb. 368; Hart v. Sanson, 110 U. S. 151.
   LEAVES, J.

Action in prohibition, the purpose of which is to determine the right of Hon. Hugo Grimm, one of the judges of the circuit court of the city of St. Louis, to proceed further with a case pending in his court, entitled, Greer Real Estate & Investment Company, plaintiff, v. Daniel D. Hunt and Mabel R. Hunt, defendants.

In the case pending in the circuit court the plaintiff therein filed its amended petition. To this petition the defendants in that cause, relators here, filed a demurrer challenging the jurisdiction of that court, and said demurrer being overruled by the respondent in this cause, an application for a writ of prohibition was made to this court and an order to show cause was made. Respondent filed his return to our preliminary rule, and relators thereupon moved for judgment upon the pleadings, and the questions of law thus raised have been argued and submitted for our decision.

The facts charged and pleaded in the petition in the circuit court case become of essence here. The petition is long, but the facts pleaded are few. These facts are: that the Greer Real Estate & Investment Gompany was the owner of certain lands in Albermarle county in the State of Virginia; that by certain named fraudulent acts the defendants in that case, relators here, induced the said company to make a deed for said lands to Mabel A. Hurt, for the agreed consideration of $16.000; that defendants, in that case, relators here, after the delivery of that deed, and before its record, fraudulently changed the name of the grantee from Mabel A. Hurt to Mabel A. Hunt; that thereafter such fraudulent deed was placed of record in Albermarle county, in the State of Virginia, by the relators in this cause; that the name Mabel A. Hurt, grantee in the deed by the corporation, was fictitious and known to be so by the relators in this cause, but not known by the corporation at the execution of the deed; that the relators here fraudulently devised this scheme to get the title of the land in question in the name of the relator Mabel R. Hunt; that the corporation has never received the consideration of $16,000; that the relator Daniel D. Hunt was a stockholder in the corporation, and having its confidence was enabled to perpetrate the alleged fraud upon the corporation. After charging these facts the petition in the circuit court thus concludes:

“And that the said conveyance as placed upon the records of conveyances of Albermarle county, Virginia, constitutes and is a cloud upon the title to plaintiff’s said property; that the plaintiff has the possession of said property and has no adequate remedy at law to redress the wrongs and grievances complained of:

“Wherefore and by reason of the premises plaintiff prays for an order cancelling the said deed aforesaid; that the said deed made by the plaintiff to said property be ordered surrendered up and impounded in the records of this court in this case; and the plaintiff prays for such further and other orders, judgments and decrees in the premises as may be just' and proper, together with its costs in this behalf expended; and for this it will ever pray.”

In the application for the writ of prohibition it is charged that the said plaintiff in the action pending in the circuit court had since the filing of the petition in this State as aforesaid, had filed a similar petition in the proper court of Albermarle county, State of Virginia, and had procured service upon these relators, as defendants in that action, and that thereby these relators were called upon to defend two actions covering the same subject-matter and seeking the same relief. This allegation stands, in effect, admitted by the return of respondent, and was admitted in oral argument.

This sufficiently outlines the facts.

I. A reading of the petition on file in the court over which respondent presides shows beyond doubt that the action is one to annul and cancel a deed and thereby remove the apparent cloud upon the plaintiff’s alleged title to the real estate described in the petition. It is true the prayer of the petition asks for the impounding of the alleged forged deed, but this does not change the legal effect of the petition. Impounding a deed already of record would avail plaintiff nothing. But we need not pursue this further at this point. The only fair interpretation of the petition and its purpose is as above indicated. The question then is, has the circuit court of the city of St. Louis jurisdiction to hear and determine a case, the purpose of which is the cancellation, for alleged fraud, of a deed to lands in the State of Virginia. This question we discuss next.

II. The petition in respondent’s court states a cause of action, but it goes further and states facts which show that such cause of action is not cognizable by the courts of this State. A court of equity in Missouri has no jurisdiction to cancel for fraud a deed to lands in the State of Virginia. Nor has such court any greater right to cancel such deed because there is an allegation of a fraudulent change in the name of the grantee. Fraud of any kind, if proven, would obviate and vitiate the deed, but the hearing of the question of fraud or no fraud, forgery or no forgery, must be in a court having jurisdiction of the particular case. We say “forgery or no forgery,” because the changing of the name of a grantee in a deed is not only a fraud, but by law is forgery. The cancellation of a recorded deed is an act which affects the title to real-estate. Such cancellation is the destruction of a muniment of title. It involves directly the title to real-estate. The decree annulling the deed acts directly upon the land and the title thereto. A cloud upon the title as alleged in this petition is “a title or encumbrance apparently valid, but in fact invalid.” [7 Cyc. 255.]

In such case the courts of one State have no jurisdiction over the subject-matter of the suit, where it is alleged in the petition that the land to be affected lies within the jurisdiction of another State. The jurisdiction of the subject-matter of such action is in the proper court of the State wherein the land is situated.

And this is true notwithstanding the general rule that courts of equity act in personam. This exception to the general rule is recognized by statutes in many states, as well as by the common law.

In this State the case of Castleman v. Castleman, 184 Mo. l. c. 438, is in point. That was an action to cancel two deeds to land lying in Cooper county. The suit was brought in Cooper county where the land was, but where defendants did not reside. Defendants challenged the jurisdiction of the court in this equitable action. Through Valliant, J., we then said:

“The position of appellant on this point is that this is a personal suit and could be brought only in the county of his residence or ‘where the plaintiff resides and the defendant may be found.’ Appellant is correct in his general proposition that a court of equity acts in personam.

“And since the suit is personal in its character it must seek the person to be affected in the county of his residence regardless of where the thing in controversy may be. [State ex rel. v. Zachritz, 166 Mo. 313.] But our statute (Sec. 564, R. S. 1899) has en-grafted one exception to that rule. It is said: ‘Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situated.’

“Title to real estate is directly affected in this suit. By the decree appealed from the appellant is divested of title and the plaintiff invested with tie same. [Keyte v. Plemmons, 28 Mo. 104; Ensworth v. Holly, 33 Mo. 370; Railroad v. Mahoney, 42 Mo. 467.]

“Since the law requires the suit to be brought in the county in which the land lies, it follows that the summons may be sent to any county in the State where the defendant resides or may be found. It has been so held in attachment suits, and the principle is the same in suits of this kind. [Magrew v. Foster, 54 Mo. 258, l. c. 261; Stone v. Trav. Ins. Co., 78 Mo. 655.]

“We hold that this suit was properly brought in the circuit court of Cooper county.”

In Brown on Jurisdiction (2 Ed.), p. 32, it is said: “There are three classes of actions known to the common law, namely: personal actions, mixed actions and real actions, or actions that are local. Ordinarily, at common law, real actions and mixed actions are local, and personal actions are transitory.”

And the same author on page 171 further says: “The statutes of the different states usually provide that actions shall be brought in the county or district where the defendants, or some of them if more than one, reside. But, in general, the statute provides that real actions, or actions relating to real property, shall be brought in the county where the property lies. If the statute does not provide, the action would be local by common law rules, which are usually adopted in this country by general consent. In order, therefore, to commence an action, local by common law, it is necessary to see that the statute makes express provision for the trial of it as a transitory one. Where the action is local, the venue must be laid in the county in which the land is situated, unless it is otherwise provided by statute.”

In Story on Conflict of Law (8 Ed.), sec. 545, p. 760, it is said: “But even in England the court of chancery will not act directly upon lands in the plantations, so as to affect the title, or the possession, or the rents and profits thereof.”

Without statutory provisions the common law rule prevails. In 22 Ency. Plead. and Prac., 790, it is said: “In the absence of stautory provisions to the contrary, the original division of actions into transitory and local still prevails in the States of the Union, and the venue of a particular action must be determined by the old common law rules as to venue.”

The statutes of the different States, like the common law, have made actions touching the title to real estate local. Speaking of such, statutes in 22 Ency. Plead. & Prac., p. 792, it is said:

“Another common provision as to venue is to the effect that certain actions must be tried in the county where the subject-matter of the action or some part thereof is situated, subject in some states to the power of the court to change the place of trial.

“Under this division are classed the following actions : those which are for the recovery of real estate or which are brought on account of injuries thereto; actions of ejectment; for dower; for waste; for partition; to foreclose mortgages upon real estate or to foreclose a mortgage upon chattels real. In short, as it is often expressed in these statutes, all actions to recover or to procure a judgment establishing, determining, defining, forfeiting, amending, or otherwise affecting an estate, right, title, lien, or other interest in real property come under this classification and are to he tried in the county where the subject-matter of the action or a part thereof is situated.”

In Missouri the statute has made the action' stated in this petition a local action. Under our statute the St. Louis Circuit Court is without jurisdiction to hear and determine an action affecting the title to real estate, unless such real estate was within the territorial jurisdiction of the court. This statute is hut expressive of the common law rule. It hut makes a local action out of what was already a local action by the common law. So that, whilst the circuit court of the city of St. Louis has jurisdiction to hear and determine real actions of the general kind here involved, yet there is a limitation to that jpower, i. e., that the real 'estate to be affected must be within the territorial jurisdiction of the court. The petition before the circuit court disclosed that the court had no jurisdiction, because it disclosed that the real estate'sought to he affected was in thé State of Virginia.

■ In .oral argument counsel for respondent admitted that if title to real estate was involved then the respondent was without-jurisdiction. In the face of that admission we can see nothing left, except to declare that respondent is without jurisdiction, and the preliminary rule in prohibition should be made absolute. Counsel argues that the subject-matter of the suit is the alleged forged deed, and that as the alleged forged deed was in the city of St. Louis, and the defendants were found there, the circuit court had jurisdiction of both the subject-matter and the person and therefore the jurisdiction was complete. The trouble is counsel misconceives his own petition. It is clearly an action to cancel a deed upon the ground of fraud, and to thereby remove a cloud upon the title to lands in Virginia. Incidentally it asks for the impounding of the forged deed, but what of that? Standing alone that allegation would come to naught, for no court of equity would impound and hold an alleged forged deed. If the hill only asked for such relief, it would be without merit. - The. only thing which could be of any value to plaintiff is the cancellation, by decree of court, of this alleged forged deed, so that the cloud occasioned by its record, might be removed. This is what the bill seeks, but as stated above, a Missouri court of equity is without power to grant such relief.

It is clear to our minds that the respondent is without power to hear and determine the cause now pending before him, and the. writ of prohibition should go. It is so ordered.

All concur except Lamm and Kennish, JJwho dissent in opinion by Lamm, J.

DISSENTING OPINION.

LAMM, J.

My vote is to deny the writ and quash the preliminary rule in prohibition, hence this dissent from the opinion of my learned Brother Graves.

The bill in the equity suit sought to be prohibited is loosely drawn. It certainly has allegations looking to clearing áway a cloud on the title of the Greer Investment Company to lands in the State of Virginia. It may be conceded that an equity court in this State could not by its decree affect the bare legal title to land in a sister state or clear up such title. To that extent the bill’was.too broad, too redundant and rambling in allegation. If the jurisdiction of a circuit court of St. Louis depended alone on those allegations, it would have none. But giving the bill the grace of a liberal construction, as we are bound to do, it states a cause of action in equity to avoid a real estate transaction for fraud and to have a certain deed declared void as a conveyance. If inartifieially drawn, nevertheless it was amendable. We are not to sit to prohibit a lower court from proceeding in every ease in which the petition is bad. If that were so we have indeed at last embarked on a long voyage on an uncharted sea without boundary. True, also, the prayer of the bill in part is to impound a recorded deed — a vain and useless thing; for the mischief was consummated when the deed was spread of record. But the demurrer below could not strike at the mere prayer in the bill, unless a prayer is demurrable — a proposition strange to the law. The same prayer asked general relief. . .

The Greer Investment Company was in St. Louis, Missouri, the Hunts were there and by due summons the court obtained jurisdiction of their persons. Now, a court of equity is par excellence a court of conscience. In administering that ghostly office, the chancellor’s own conscience being moved, he acts directly by his decree on the consciences of the parties litigant. In equity the rule is, I think, that all litigants are conclusively presumed to have consciences, whatever the real fact may be. If the land be in Virginia and if a Missouri decree can not act extra-territorially and by its own vigor affect the bare title to Virginia land, yet does that fact oust jurisdiction to lay a burden on the consciences of the Hunts? Or are their consciences also in Virginia where their treasure is, and therefore not to be bound by a Missouri decree? If their consciences are once bound by a decree, are they loosed across the State line? Hardly — the right doctrine being, once bound, always bound. Conceding, therefore, that a decree in St. Louis could not act in rem or on the bare legal title, yet that does not oust jurisdiction; for a decree in equity acts in personam; it, as said, binds their conscience here and in Virginia. [McCune v. Goodwillie, 204 Mo. l. c. 336, ante and post.] It is familiar doctrine that specific performance may be decreed in a court of equity in one State although the land is situated in another. [Olney v. Eaton, 66 Mo. l. c. 567.] Now, a decree making void a transfer or rescinding it for fraud is but the converse of specific performance, and if a court of equity, having jurisdiction of the person, may bind the conscience of such person to specific performance, why may not the same court rip up the transaction by- operating on the same conscience wherever it may be found? If the deed had not been recorded but had been delivered, would not this action lie in Missouri if the Hunts had been found there? Or must a wronged grantor lie by until the fraudulent grantee puts his deed of record? The mere record of the deed is not material to the action, nor does such record destroy the action.

Statutes of Missouri relating to the bringing of real actions and conferring jurisdiction on the circuit court of the county where the land lies, have no bearing here. They affect real actions in our own State, local in character, and, in my opinion, were never intended to affect the general jurisdiction of a court of equity in such an action as this.

Kennish, J., concurs in these views.