Farmers' Bank of Concordia v. Worthington
| Decision Date | 22 June 1898 |
| Citation | 46 S.W. 745,145 Mo. 91 |
| Parties | Farmers' Bank of Concordia, Appellant, v. Worthington et al |
| Court | Missouri Supreme Court |
Appeal from Lafayette Circuit Court. -- Hon. Richard Field, Judge.
Affirmed.
Wallace and Chiles for appellant.
(1) The deeds complained of should have been set aside for fraud proven, and because made without consideration. The evidence offered by appellant disproves the payments claimed to have been made therefor by respondent Youngs, and the appellant should have recovered on the weight of the evidence. Burgert v. Borchert, 59 Mo. 83; Cass Co. v Green, 66 Mo. 510; Benne v. Schnecko, 100 Mo 250. (2) Appellant should have recovered judgment on the circumstantial evidence, and the inferences arising from circumstances proven, pointing directly to the fact that these conveyances were fraudulent and voluntary. Hopkins v. Sievert, 58 Mo. 201; Burgert v. Borchert, 59 Mo. 80; Crow v. Beardsley, 68 Mo. 435; Massey v Young, 73 Mo. 260; Rupe v. Alkire, 77 Mo. 641; Alberger v. White, 117 Mo. 347; State ex rel. v. Purcell, 131 Mo. 312. (3) Appellant should have recovered on the facts, and the failure of respondents to produce as witnesses his partners in the fraud, and other evidence to corroborate him, which was in his power, if there was such. Henderson v. Henderson, 55 Mo. 534; Cass Co. v. Green, 66 Mo. 498; Baldwin v. Whitcomb, 71 Mo. 651; Benne v. Schnecko, 100 Mo. 250. (4) The burden of proof was on respondents, on the question of innocent purchaser, and not on appellant. Holdsworth v. Shannon, 113 Mo. 508; Ins. Co. v. Smith, 117 Mo. 261; Garrett v. Wagner, 125 Mo. 450; Potter v. McDowell, 31 Mo. 62; White v. McPheeters, 75 Mo. 286; Walsh v. Ketchum, 84 Mo. 427. (5) The alteration made in the deeds after signing and acknowledgment by respondent Youngs, or for him, was a fraud at law, and invalidated the instruments. Haskell v. Champion, 30 Mo. 136; Hord v. Taubman, 79 Mo. 101; Bank v. Frick, 75 Mo. 178.
Alexander Graves and John Welborn for respondents.
(1) The burden of proof is upon the appellant to prove the charge in the petition that Worthington conveyed the land with the intent to defraud his creditors and that Youngs knew of such fraudulent intent when he purchased the land, or was possessed of such facts as from them his knowledge of such fraudulent intent may reasonably be inferred and that he participated therein. Hill v. Taylor, 125 Mo. 342; Robinson v. Dryden, 118 Mo. 539; Ettlinger v. Kahn, 134 Mo. 498; Martin v. Estes, 132 Mo. 409; Kerstner v. Vorweg, 130 Mo. 201; Doughtery v. Cooper, 77 Mo 528; Garsche v. McDonald, 103 Mo. 1; Warren v. Ritchie, 128 Mo. 319; Chapman v. Mcllwrath, 77 Mo. 44; Dallam v. Renshaw, 26 Mo. 533; Bobb v. Woodward, 50 Mo. 101; King v. Isley, 116 Mo. 159. (2) Worthington was dead when the present suit was begun, and his wife has been nonresident during all the litigation. They have no interest in common with Youngs in this litigation, are no kin to Youngs and are as much within appellant's control as that of Youngs. Kerstner v. Vorweg, 130 Mo. 201; Scoville v. Baldwin, 27 Conn, 318; Bent v. Lewis, 88 Mo. 470. (3) Welborn's evidence shows that he wrote the deeds and that the insertions of the name of the grantee and the consideration were made before acknowledgment and delivery. Youngs was not interrogated on the point. Again, Worthington, the other party to the deeds (or his privies), is the only person who could raise the point and not appellant who is a stranger to the instrument.
This is a proceeding in equity to declare void certain conveyances of real estate in Lafayette county, from Joab Worthington to Joseph L. Youngs, and to subject the same to the payment of the plaintiff's judgment.
The facts essential to the determination of the case are these: Prior to April, 1893, Joab Worthington owned one hundred and fifty-seven and four-fifths acres of land, worth $ 40 an acre. He was reputed and believed to be solvent and his credit was good. On the eighteenth day of April, 1893, he indorsed a note for $ 1,550, made by his son-in-law Brown to the plaintiff, payable six months after date. On the twenty-seventh of April, 1893, he indorsed a similar note for $ 500, payable at five months after date, and on the twenty-eighth of June he indorsed another like note for $ 500, payable at six months. Brown was worth but little and his credit was not good.
On the fifteenth of November, 1893, Worthington conveyed fifty-seven and four-fifths acres of land to his attorney John Welborn, who at the same time conveyed it to Eliza J. Worthington, Joab's wife. There was no consideration for this transfer and its purpose is admitted to have been to vest the title in Mrs. Worthington.
On the seventeenth of November, 1893, Joab Worthington went to the bank and informed its officers that Brown was not able to pay his note, and proposed to deed to the bank sixty acres of his land in discharge of his and Brown's indebtedness of $ 2,550 to the bank. Two of the directors of the bank went to see the land that day to decide as to whether the bank would accept the proposition. When they reached the place Worthington withdrew his proposition, but proposed to let the bank have the sixty acres for $ 2,800, and to apply $ 2,550 in discharge of the debt and pay him the difference. The directors arranged to meet him the next day to determine the proposition. Worthington did not keep the engagement; so the bank brought suit that day on the two notes first described, had the summons served on Brown at once, and on Worthington about 10 o'clock that night.
On the seventeenth or eighteenth of November, 1893, Youngs and Worthington met at Aullville and rode home together. Youngs had been trying for several years to buy Worthington's land, but was willing to give only $ 40 an acre, while Worthington demanded $ 50. Worthington owed Youngs about $ 1,500, and while riding homeward Youngs told Worthington he had heard that he (Worthington) had deeded a part of his land to his wife, and that he (Youngs) wanted a deed of trust to secure his debt. Worthington refused to give the security but proposed to sell him the whole farm for $ 40 an acre, and asked him (Youngs) to go to Lexington the next day and complete the transaction. Youngs declined to go until the following Monday. On that day the parties met at Welborn's office, and after he had examined the title he drew two deeds, one for fifty-seven and four-fifths acres, and the other for one hundred and fifty-seven and four-fifths acres, the consideration expressed being $ 6,280 in each. Youngs surrendered to Worthington his three notes, aggregating $ 1,500, paid him $ 2,500 in cash, and gave him two notes, one for $ 1,200 at thirty days, and one for $ 1,080 at sixty days.
On the twenty-seventh of December, 1893, plaintiff obtained against Brown and Worthington, a judgment on the two notes previously sued on, and on the twenty-seventh of January, 1894 instituted suit against Worthington and wife, Welborn and Youngs to set aside the conveyances and subject the land to the payment of its debt. On the fourth of April, plaintiff obtained judgment on the third note described. The equity case was tried in July, 1894, and it appeared that the three notes amounting to $ 1,500 Youngs held against Worthington were for borrowed money; that the $ 2,500 cash paid, was made up of $ 1,600 Youngs had on hand in his home, cash accumulated from the sale of cattle since the July previous, and $ 900 he borrowed from his son Elmer, who was also a farmer and stock dealer; that the notes for $ 1,200 at thirty days and $ 1,080 at sixty days were paid at or before maturity, before the institution of that suit, and before Youngs knew that Worthington was indebted to the bank. Upon this showing the plaintiff took a voluntary nonsuit, but immediately instituted this suit, having a like purpose. Joab Worthington and wife, in the meantime, had removed from this State and before service was had, Joab died and his heirs were made parties to this suit. The answer of Youngs admits the purchase, denies the allegations of fraud and sets up that he purchased the property in good faith and for a valuable consideration. Welborn admits the conveyance from Joab Worthington to him, and by him to Eliza Worthington, was without consideration and for the purpose of vesting the title in Eliza J. Worthington. The other defendants made default. Upon the trial, in addition to the facts above stated, the plaintiff showed by the testimony of the shipping master of the Kansas City Stock yards, and by that of the bookkeepers of two firms of stock dealers in that city, that between October 1, 1893, and April 1, 1894, Joseph L. Youngs' and Elmer E. Youngs' stock dealings in Kansas City, were as follows: Elmer Youngs, October 20, 1893, one car load seventy-two hogs, $ 822.27 of which he drew $ 10 cash, and balance was sent to American Bank, in Higginsville; December 14, 1894, one car sixteen cattle for Elmer and two cars thirty-eight cattle for Joseph, $ 1,807.93, of which Elmer drew $ 25 and the balance was sent to American Bank, at Higginsville; January 29, 1894, seventy-three hogs, $ 847, of which Elmer drew $ 25, and balance was remitted to the same bank; February 1, 1894, eighteen cattle and three hogs, $ 601.68, of which Elmer drew $ 10, and the balance was remitted to the same bank; March 13, 1894, fifty-nine hogs, account Joseph, $ 596.05, remitted to same bank; that the books of the bank showed that all of these amounts except the last, were credited to Elmer. The evidence further showed that the cattle of Joseph and Elmer were sometimes billed in one name and sometimes in another. The returns for taxation made by Joseph for the years 1891, 1892 and 1893,...
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