Snyder v. Free

• Citation: 21 S.W. 847,114 Mo. 360
• Parties: Snyder, Plaintiff in Error, v. Free et al
• Decision Date: 28 February 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 847

114 Mo. 360

Snyder, Plaintiff in Error, v. Free et al

Supreme Court of Missouri, Second Division

February 28, 1893

Appeal from Clinton Circuit Court. -- Hon. James M. Sandusky, Judge.

In this equitable proceeding the plaintiff seeks to set aside, on the ground of fraud on himself and other creditors, a deed executed by Mrs. Wing, the mother, to her daughter, the defendant, Mrs. Free, on the third day of November, 1884.

Mrs Wing died intestate in March, 1885. Letters of administration were granted on her estate in June, 1886, at the instance of plaintiff as creditor, and his claim, amounting to the sum of $ 280, allowed in the probate court in September, 1886. The estate of Mrs. Wing was, and always had been, insolvent, and as there were no assets belonging to said estate plaintiff's claim remains unsatisfied.

In addition to the facts already stated, the petition alleges that at the time of the death of Mrs. Wing and long prior thereto, she was and had been indebted to plaintiff in the sum thus allowed for medical and surgical treatment, etc that on the third day of November, 1884, said Martha M. Wing, for the purpose of cheating and defrauding him out of the said debt and money owing him by said Martha M. Wing and also putting beyond the reach of creditors so that plaintiff could not subject the same to the said debt then owing him by said Martha M. Wing, did convey by deed, etc., * * * said debt, which said David and Katie well knew at the time of said conveyance was owing by said Martha M. Wing to plaintiff; that Mrs. Free was and is the only surviving child of Mrs. Wing; that the consideration mentioned in the deed was $ 400, but that no part of such consideration had ever been paid; that the lot conveyed by the deed was the only property owned by Mrs. Wing, which was well known to defendants, etc.

The answer consists of a general denial of every allegation of the petition "except that which may be hereinafter expressly admitted." In a subsequent clause the defendants admit the death of Mrs. Wing as stated in the petition; "admit the indebtedness;" admit the appointment of an administrator and the allowance of the claim of plaintiff; that Mrs. Free was and is the only heir and surviving child of Mrs. Wing, and that she conveyed the property as alleged in the petition, but deny that the estate of Mrs. Wing was always insolvent; deny that the deed was made to hinder, delay or defraud plaintiff or others; but aver that it was voluntarily made in good faith and legal force and valid consideration, to-wit, the sum of $ 400 paid, etc., to Mrs. Wing by defendants, and for the additional consideration, to-wit, that said Martha M. Wing was greatly afflicted and feeble in health for several years prior to her death, and was very old, and required continual care, and kind treatment, and contin uous expenses were necessarily incurred in her behalf for several years prior to her death, all of which care, treatment and expenses were given, bestowed and expended to, upon and for said Martha M. Wing by said David Free and Kate S. Free, the defendants. That in the consideration of the said sum of money, and said care and treatment so paid and bestowed by defendants, and the love and affection that existed between mother and daughter, said Martha M. Wing did convey said land and real estate to said Katie S. Free and for no other purpose, reason or consideration.

It is unnecessary to notice the residue of the answer, as it relates to an incumbrance held by Henry Free, the other defendant, on the property in controversy, for the sum of $ 200, and it was admitted at the hearing of the cause that plaintiff had no ground for relief against him. The reply was a general denial.

When the cause came on to be heard, the plaintiff moved for a decree on the pleadings, but this motion was denied.

The litigated property was variously estimated as worth at the time the deed was made from $ 500 to $ 900; it was the place of residence of Mrs. Wing, and her daughter and son-in-law had lived with her for about two years prior to her death. She was feeble and almost helpless.

The testimony of the notary who drew the deed of conveyance on the third day of November, 1884, shows that on that day Mrs. Free came to his office and told him that her mother was sick and wished to deed her some property and to come to the house, which he did; that Mrs. Wing was sick and confined to her bed, and her daughter was there present when he arrived, but whether after that he does not know. He further testifies: "I drew up the deed in controversy. Mrs. Wing executed it. No consideration was paid for the deed in my presence. The way I came to write in the consideration mentioned in the deed was this: I asked Mrs. Wing what consideration I should insert in the deed. She replied that I should insert the same consideration that she paid me when she bought the property, and she said Katie had always been good to her and she wanted her to have the property. I wrote the same consideration in the deed as in the deed to her from me. I think the consideration was $ 400. There was nothing more said or done about the consideration."

On the same day this deed was executed, plaintiff had amputated Mrs. Wing's breast; but whether before or after the execution of the deed does not appear. In the proceeding July, however, he had announced her case as hopeless. "During the time I was treating Mrs. Wing, the defendant, Katie S., often came to me and asked me to do all I could for her mother and that her mother would leave enough property when she was gone to pay me. I recall one occasion when she said this to me; it was in January, 1885, on a cold, blustery day. I was not feeling well that day. Katie S. Free came to my office and wanted me to go and see her mother. I told her I could not do her mother any good except to relieve her pain and that I would rather not go, that there would be no use in running up a big doctor bill. She replied that she wanted me to do all I could for her mother and make her comfortable and that when her mother was gone there would be plenty left to pay me. * * * During sickness of Mrs. Wing she often talked about her doctor bill. Said she was ashamed that she had not paid me anything, but that when she would be gone there would be plenty left to pay me. I told her not to worry about her doctor bill."

It was abundantly shown by the evidence that the estate of Mrs. Wing was absolutely insolvent and always had been. The title of Mrs. Wing to the property in litigation was of record; but it does not appear when the deed in question was put to record, or that plaintiff had any notice of its existence.

At the close of the evidence, the court found and declared for the defendants, and plaintiff brings error.

Reversed and remanded.

John J. McAnaw for plaintiff in error.

(1) The burden of proof is by pleading on defendant, and plaintiff's motion should be sustained. Taylor on Evidence, text book series, sec. 150, p. 170; side sec. A, 128; Wharton on Evidence, secs. 366, 367; Clements v. Moore, 6 Wall. 229; Pomeroy on Equity Jurisprudence, sec. 956; Taylor on Evidence, par. 2, ch. 2, sec. 376, star sec. 347; Leavitt v. LaForce, 71 Mo. 353; Leeper v. Bates, 85 Mo. 224. (2) Plaintiff's declarations of law should have been given. Cases, supra; Lionberger v. Baker, 88 Mo. 447; Eck v. Hatcher, 58 Mo. 239; Henderson v. Henderson, 55 Mo. 534; Mabary v. McClurg, 74 Mo. 575; Cass Co. v. Greene, 66 Mo. 498; Bent v. Lewis, 88 Mo. 462; Hunter v. Atkins, 3 Mylne & Keene, 135; Garvin v. Williams, 44 Mo. 465; Cadwallader v. West, 48 Mo. 483; Street v. Goss, 62 Mo. 226; McClure v. Lewis, 72 Mo. 314; Caspari v. Church, 82 Mo. 652; Gay v. Gillilan, 92 Mo. 251; May on Fraudulent Conveyances, star p. 56, in Blackstone series, p. 57. As to the kindness of Katie being a consideration for the deed, plaintiff refers to Penter v. Roberts, 51 Mo.App. 222.

William Henry for defendant in error.

(1) Strong evidence of a fraudulent intent is required when there are no existing creditors and a deed is attacked for fraud by a subsequent creditor. Ziekel v. Douglass, 88 Mo. 382; Bank v. Overall, 90 Mo. 410; Loehr v. Murphy, 45 Mo.App. 519. (2) The evidence in this case is very weak from its nature, since it consists of mere verbal declarations; and all such testimony must be received with great caution. 1 Greenleaf on Evidence, sec. 200. (3) All presumptions are in favor of the judgment, and this court will defer somewhat to the findings of fact by the trial court. Ryan v. Gilliam, 75 Mo. 132.

OPINION

Sherwood, J.

I. The motion for a decree on the pleadings should have prevailed; Mrs. Free and her husband in their answer "admit the indebtedness." Now, the only indebtedness charged in the petition is that which is alleged therein to have been due on the third day of November, 1884; for the petition in reference to the deed made on that date, and to the indebtedness of Mrs. Wing states, "said debt and money owing him by said Martha M. Wing;" * * * "said debt then owing him by," etc. The admission of the debt and likewise of its date must, therefore, be regarded as standing confessed on the face of the pleadings notwithstanding the ambiguous phraseology in the prefatory portion of the answer.

The central idea of code pleading is that an answer should not be evasive, but should meet the allegations of the petition fairly and squarely, thus presenting sharply defined issues for the triers of the facts to pass upon. Revised Statutes 1889, sec. 2049. On a former occasion this court denounced the method here employed as a "vicious method of pleading," and this was an apt characterization of such a faulty way of pleading. It was never the design of the code that a...