Lohman v. Stocke
| Decision Date | 07 May 1888 |
| Parties | Lohmann v. Stocke et al., Plaintiffs in Error |
| Court | Missouri Supreme Court |
Error to Morgan Circuit Court. -- Hon. E. L. Edwards, Judge.
Affirmed.
F Gottschalk for plaintiffs in error.
(1) The court erred in overruling the objections made by plaintiffs in error to the introduction of any evidence and in overruling their motion in arrest. R. S., sec. 2381; Ray v. Stobbs, 28 Mo. 35. (2) The court erred in admitting illegal evidence. This refers to the reading of the depositions of witnesses, who were present in the court and could be then and there orally examined; and as the issues in the present suit and the former suit wherein said depositions were taken, were not the same. Borders v. Barber, 81 Mo. 636; Priest v. Way, 87 Mo. 28. (3) The finding and decree is against the law and the evidence. The charge in the petition, that the conveyance was made to the use of the grantor (Stocke) is not sustained at all by any evidence whatever. The section under which conveyances to the use of the grantor are void, does not apply to conveyances upon a valuable consideration. Eaton v. Perry, 29 Mo. 96. And fraud cannot be inferred from the mere fact that the grantor was in debt at the time of the transfer. Beckner v. Stine, 48 Mo. 470; Dougherty v. Cooper, 77 Mo. 528. When the transaction on the part of the vendee is bona fide, and for a full and valuable consideration, the fraudulent intent of the vendor will not alone render the conveyance void. Sibby v. Hood, 3 Mo. 290; Little v. Eddy, 14 Mo. 160; Byrne v Becker, 42 Mo. 264; Ducker v. Chambers, 57 Mo 575; Rumbolds v. Parr, 51 Mo. 592; Chouteau v. Sherman, 11 Mo. 585; Dougherty v. Cooper, 77 Mo. 532; Hurley v. Taylor, 78 Mo. 238. A party in failing circumstances may, with an honest view to pay his debts, convey his property to any one of his creditors in payment of his just debts. Ames v. Gilmore, 59 Mo. 537; Henderson v. Henderson, 55 Mo. 555; Dougherty v. Cooper, 77 Mo. 529, and cas. cit.; Hurley v. Taylor, 78 Mo. 238. Fraud will not be presumed, when all of the facts in the case consist as well with honesty and fair dealing, as they do with an intent to defraud. Dallam v. Renshaw, 26 Mo. 533; Rumbolds v. Parr, 51 Mo. 592; Henderson v. Henderson, 55 Mo. 555. And again the sheriff's deed in evidence does not convey to plaintiff anything more than the interest of Valentine Stocke, in the property, on the day of the levy, and that interest was only the equity of redemption. He then had the right to pay off the claim of Mrs. Riethmann, it being a prior encumbrance; -- but instead of that, he comes into court, without doing equity himself, and wants the chancellor to assist him, in a speculation, to remove this encumbrance to his own advantage; upon the weight of the testimony, we apprehend the court cannot do so.
G. A. Wurdeman for defendant in error.
(1) Transactions between persons occupying intimate and confidential relations are subject to a more jealous scrutiny than those occurring between mere strangers, and the parties are held to fuller and stricter construction of the fairness of such transactions when they conflict with the rights of others. Bump on Fraud. Con. 54, et seq.; Renney v. Williams, 89 Mo. 139; Leavitt v. LaForce, 71 Mo. 353. (2) Fraud will be inferred from the situation of the parties, and the circumstances surrounding their transactions. Hopkins v. Williams, 58 Mo. 201; King v. Moore, 42 Mo. 551; Bump on Fraud. Con. [2 Ed.] 581. (3) The finding of the court is supported by the evidence, and the Supreme Court will not interfere and reverse such finding unless it is clear it should have been otherwise. Erskine v. Lowenstein, 82 Mo. 301; Parke v. Thompson, 71 Mo. 565; Chapman v. McIlwrath, 77 Mo. 39; Renney v. Williams, 89 Mo. 139.
On the seventh day of April, 1883, plaintiff, as a purchaser at execution sale under judgments rendered against defendant, Stocke, of certain land in Morgan county, instituted this suit. At the date of said sale, the said land was encumbered by a deed of trust executed by defendant, Stocke, to defendant, Traube, as trustee to secure the payment to defendant, Reithman, of an alleged note for thirty-one hundred dollars. Plaintiff, in his petition, alleges that said note and deed of trust were without consideration and were executed for the purpose of defrauding and cheating the creditors of said Stocke, and prays the court to declare them to be void as to creditors, and to cancel the same. The answer of defendants denied all fraud. On the trial of this issue it was found for plaintiff and a decree was entered as prayed for. From this decree defendants have prosecuted their writ of error to this court, assigning for error the action of the court in receiving evidence, and that the decree is against the weight of the evidence.
On the trial defendants objected to the introduction of any evidence, stating as the ground of objection that it did not set forth a cause of action, in that it did not appear that the notice required by Revised Statutes, section 2381, where real estate is situated in a different county from that in which defendant in the execution owning such real estate resides, was given. The objection was properly overruled if for no other reason than that one of the executions on which the sale was made, issued on a judgment which was rendered in the county where the land sold was situate. In Harper v. Hopper, 42 Mo. 124, it is held that the provision of the statute which requires notice to be given to a defendant, where an execution is issued to a county other than that in which he resides, has been uniformly held to apply only to cases where the execution is sent to be levied on land in a county different from that in which the judgment was rendered and execution issued. Harris v. Chouteau, 37 Mo. 165; Buchanan v. Atchison, 39 Mo. 503.
It appears from the record that, in January, 1878, defendant Stocke, being in failing circumstances and largely in debt, executed a deed of trust conveying the land in question to defendant, Traube, who was his son-in-law, as trustee, to secure the payment of a note to one Heisel for thirty-five hundred dollars; that, on the fifth of March, 1881, Traube, as ...
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