60 S.W. 1089 (Mo. 1901), Swinford v. Teegarden

Citation:60 S.W. 1089, 159 Mo. 635
Opinion Judge:MARSHALL, J.
Party Name:SWINFORD v. TEEGARDEN et al., Appellants
Attorney:Harber & Knight for appellants. C. J. Bain and Hall & Hall for respondent.
Case Date:February 12, 1901
Court:Supreme Court of Missouri
 
FREE EXCERPT

Page 1089

60 S.W. 1089 (Mo. 1901)

159 Mo. 635

SWINFORD

v.

TEEGARDEN et al., Appellants

Supreme Court of Missouri, First Division

February 12, 1901

Appeal from Grundy Circuit Court. -- Hon. P. C. Stepp, Judge.

Affirmed.

Harber & Knight for appellants.

(1) All the evidence shows, that on part of plaintiff, and of defendants as well, that Mrs. Teegarden, nee Benedict, was largely indebted to her son, Austin, and that the conveyance of August 14, 1889, was made by Mrs. Teegarden to her son, by reason of such indebtedness. Hence the allegation that said conveyance was voluntary, or without consideration, is without the slightest proof to sustain it. (2) Mrs. Teegarden, being indebted to her son Austin, had a perfect right to convey him property in payment of, or to be applied on her debt to him. And this is true, though such conveyance necessarily operated to delay Swinford, or any creditor she might have in the collection of any claim against her. Henderson v. Henderson, 55 Mo. 534; Milling Co. v. Burns, 152 Mo. 350; State ex rel. v. Purcell, 131 Mo. 312; Coffin Co. v. Rubelman, 15 Mo.App. 280; Ames v. Gilmore, 59 Mo. 537; Schroeder v. Bobbitt, 108 Mo. 289; Larrabee v. Bank, 114 Mo. 592; Ettlinger v. Kahn, 134 Mo. 492; Jaffrey v. Mathews, 120 Mo. 317; Bank v. Worthington, 145 Mo. 91. And we insist that the evidence is wholly lacking to show any fraudulent intent or wrongful act on the part, even, of Mrs. Teegarden, and confidently contend that the evidence shows that at the time she made the conveyance to Austin, she did not know that she had a creditor in the world other than her son. And hence she could not have had any purpose or intent in making said deed, other than to partly pay her son the amount she was justly indebted to him, which she had lost years before in her loans to the Crookshanks. But a fraudulent intent even upon the part of Mrs. Teegarden, would not be sufficient to in anywise affect the deed. Forrester v. Moore, 77 Mo. 657; Alberger v. White, 117 Mo. 347; State to use v. Mason, 112 Mo. 374; Bank v. Worthington, 145 Mo. 91; Milling Co. v. Burns, 152 Mo. 352; National Tube Works Co. v. Machine Co., 118 Mo. 365; Ettlinger v. Kahn, 134 Mo. 492; Van Raalte v. Harrington, 101 Mo. 602; Holloway v. Holloway, 103 Mo. 274; Kerstner v. Vorweg, 130 Mo. 200; Implement Co. v. Ritchie, 143 Mo. 611. (3) Dishonesty, fraud, is never presumed but must be proved, not conjectured; and we confidently insist that when given fair and impartial consideration the testimony, facts and circumstances in proof, shows the bona fide, and absolute good faith of the conveyance from Mrs. Teegarden to her son. Yet, if there were facts in proof which might give rise to the suspicion of the existence of fraud, such facts do not, even if they were uncontradicted, establish it. And when, as in this case, any such claimed circumstances, or facts, are fully overthrown and explained by the most indisputable evidence, no unfavorable inference can be drawn therefrom. Priest v. Way, 87 Mo. 16; Ridge v. Greenwell, 53 Mo.App. 479.

C. J. Bain and Hall & Hall for respondent.

(1) The final receipt and order of the probate court of Ionia county, Michigan, discharging the guardian, constituted a final judgment and was conclusive between the parties thereto and their creditors. They can not impeach or attack it in a collateral proceeding, but are estopped thereby as to their creditors. Cox v. Boyce, 152 Mo. 576; Smith v. Hauger, 150 Mo. 444; Nelson v. Barnett, 123 Mo. 564; State ex rel. Pountain v. Gray, 106 Mo. 533; Patterson v. Booth, 103 Mo. 417; Garton v. Botts, 73 Mo. 276; Miller v. Major, 67 Mo. 247; Dix v. Morris, 66 Mo. 514; Sheetz v. Kirtley, 62 Mo. 417; Lewis v. Williams, 54 Mo. 200; Brent v. Groses, 30 Mo. 253; State to use v. Roland, 23 Mo. 95; Jones v. Brinker, 20 Mo. 87; State ex rel. v. Bilby, 50 Mo.App. 168; Smith v. Denny, 34 Mo. 219; Robert v. Morren, 27 Mich. 306. (2) These deeds were voluntary, without consideration, fraudulent and void as to creditors. R. S. 1889, secs. 3397, 3398; Shanklin v. McCracken, 151 Mo. 597; Frank v. Reuter, 116 Mo. 517; Snyder v. Free, 114 Mo. 360; Patton v. Bragg, 113 Mo. 595. (3) While a debtor may prefer his creditors, if he conveys to a creditor more property than is sufficient to pay or secure his debt, the entire conveyance is fraudulent as to his other creditors, and is void. Imhoff & Co. v. McArthur, 146 Mo. 378; Bolin v. Ross, 120 Mo. 217; Tube Works Co. v. Machine Co., 118 Mo. 375; Alberger v. White, 117 Mo. 370; Segers Sons v. Thomas Bros., 107 Mo. 641; State ex rel. v. Hope, 102 Mo. 429; Sexton v. Anderson, 95 Mo. 379; Lumber Co. v. Mining Co., 78 Mo.App. 681; Ball v. O'Neill, 64 Mo.App. 388; Gregory v. Sitlington, 54 Mo.App. 65; Crawford v. Neal, 144 U.S. 685; Bump on Fraudulent Conveyances (4 Ed.), secs. 34, 485; Clark v. Lee (Mich.), 44 N.W. 260. (4) Fraud need not be proven by direct testimony; it may be inferred from circumstances. The false recital of the consideration in...

To continue reading

FREE SIGN UP