Barber v. Nunn

• Citation: 205 S.W. 14,275 Mo. 565
• Parties: WILLIAM A. BARBER v. JOSEPH NUNN et al., Appellants
• Decision Date: 30 July 1918
• Court: United States State Supreme Court of Missouri

205 S.W. 14

275 Mo. 565

WILLIAM A. BARBER v. JOSEPH NUNN et al., Appellants

Supreme Court of Missouri, Second Division

July 30, 1918

Appeal from Lewis Circuit Court. -- Hon. Charles D. Stewart, Judge.

Affirmed.

Hilbert & Henderson, A. F. Haney, and M. C. Schofield for appellants.

(1) The court had no jurisdiction of the subject of the action, since the cause of action alleged in the petition was for the purpose of setting aside a deed to land situated in that part of Lewis County east of the range line between ranges six and seven, thereby giving the circuit court at Canton exclusive jurisdiction of the action. Laws 1897, p. 60. The use of the word "exclusive" in a statute defining the jurisdiction of a court has the effect of taking away the jurisdiction of every other court. Tackett v Vogler, 85 Mo. 483; State ex rel. v. County Court, 38 Mo. 408. In such case, the suit is to be regarded as falling within a class of cases over which the court has no jurisdiction, and constitutes a want of jurisdiction over the subjectmatter of the suit. Ensworth v. Holly, 33 Mo. 372; State ex rel. v. Muench, 225 Mo. 210. (2) The finding and judgment of the trial court that the deed of conveyance in controversy herein was fraudulently executed, delivered and accepted by the parties thereto is unsupported by the evidence in this cause. "In order for the creditors of the grantor to defeat the deed for fraud it was incumbent on them to prove that it was made by the grantor with a fraudulent intent and that the grantee had notice of such intent when he purchased." Robinson v. Dryden, 118 Mo. 534; Southern Bank v. Nichols, 202 Mo. 320. "In order to defeat the title of a purchaser from one who conveys lands with a fraudulent intent, the vendee must have notice of such intent or participate in the fraud." Henderson v Henderson, 55 Mo. 535; Amos v. Gilmore, 59 Mo 543. See also Gust v. Hoppe, 201 Mo. 298. "The rule is that fraud must be proved and cannot be presumed, and, if the facts shown are all consistent with an honest purpose, honesty in the transaction should be inferred." Robinson v. Dryden, 118 Mo. 539; Amos v. Gilmore, 59 Mo. 543; Henderson v. Henderson, 55 Mo. 555. Mere suspicion is not sufficient. The fraud must be proved as an affirmative fact, and the proof must be of such a positive and definite character as to convince the mind of the chancellor, for it is never presumed, and if the facts shown all consist as well with honesty as with fraud, the transaction should be held honest." Farmers' Bank v. Worthington, 145 Mo. 100; Bump on Fraudulent Conveyances (2 Ed.), p. 584. "Where there is a valuable consideration for a transfer, no matter how trivial or inadequate it may be, the conveyance is not voluntary, and therefore not presumptively fraudulent. In such cases, actual intent to defraud must be found as a fact in order to defeat the conveyance." Commercial Bank v. Kuechner, 135 Mo.App. 63; Robinson v. Dryden, 118 Mo. 539; Ettlinger v. Kahn, 134 Mo. 497; Link v. Hathway, 143 Mo.App. 502.

J. G. Trimble, E. A. Dowell and Richard J. McNally for respondent.

(1) Circuit courts are created by the Constitution -- not by the Legislature -- and laws attempting to limit or control their constitutional powers are void. Constitution, art. 6, sec. 22; Chicago Ry. v. Gildersleeve, 219 Mo. 170. The Act of 1897, providing for holding two terms of the Lewis County Circuit Court at Canton, did not create a new court, nor did it interfere with the Circuit then existing, composed of the counties of Lewis, Clark, Knox and Scotland. The words in that act (Sec. 3) "original and exclusive" are "supererogation," and the Act does not deprive the circuit court sitting at Canton of its constitutional jurisdiction. State v. Hall, 189 Mo. 262; State v. Sublett, 191 Mo. 163. The act providing for holding two terms of the court at Canton did not deprive the circuit court sitting at Monticello of its jurisdiction. State v. Vickers, 209 Mo. 30. (2) Defendant Joseph's manifest purpose was to put his property out of the reach of the execution of a judgment which he had reason to believe would be obtained against him. The evidence is that the grantees not only had notice of this purpose, but actively aided in the details leading to its consummation, for one of the grantees asked the justice to write the quitclaim deed, and to antedate it. And it is also shown that after several years of partnership relations among them, Joseph was suddenly dropped from the firm when a damage suit was instituted against him. Sharp v. Cheatham, 88 Mo. 498; Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 Mo. 147; Stivers v. Horne, 62 Mo. 473; Gust v. Hoppe, 201 Mo. 298. (3) The defendants are brothers, and the fact of such relationship should be considered in connection with other circumstances, on the question of intent to defraud Joseph's creditors. Van Raalte v. Harrington, 101 Mo. 602; Robinson v. Dryden, 118 Mo. 534; First National Bank v. Frey, 216 Mo. 42. (4) The continued possession of real property by the vendor is a circumstance to show fraud. Steward v. Thomas, 35 Mo. 202; Dickson v. Kempinsky, 96 Mo. 252. (5) "Where the petition distinctly charges fraud upon a defendant, his unexplained failure to appear and testify will be regarded as a strong circumstance against him; and this whether subpoenaed by the adverse party or not." Mabary v. McClurg, 74 Mo. 575; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261.

OPINION

WALKER, P. J.

This is an action brought in the circuit court of Lewis County to set aside a deed. Upon a trial before the court without a jury, there was a judgment for plaintiff, from which defendants have appealed.

This case had its origin in an effort on the part of the plaintiff to secure satisfaction of a judgment theretofore obtained by him against one of the defendants, Joseph Nunn, the facts concerning which are briefly as follows:

On July 27, 1912, plaintiff brought suit against Joseph Nunn, charging him with having alienated the affections of the plaintiff's wife. A few days thereafter, while Joseph Nunn was at work with his brothers, who are the other defendants, he was served with summons in the alienation suit. The brothers were aware of the nature of this action, and of the service of summons upon him. He took a change of venue to Marion County, where a judgment was rendered against him for $ 1500, from which he prosecuted no appeal. Execution was issued on this judgment, and certain of Joseph Nunn's property was levied on and sold, and the amount derived therefrom, less the expenses of the proceeding, was credited on the judgment, leaving the greater portion of the judgment unsatisfied. Other than his interest in the land here involved, he had no property. The action at bar was thereupon brought to set aside a deed which had been made by defendant, Joseph Nunn, on the 27th day of August, 1912, to his brothers, Henry and Reason Nunn, the other defendants, to his undivided one-third interest in a certain tract of land which had descended by operation of law to the three brothers from their father. This instrument was a quit-claim deed, importing a consideration of $ 3333.33, and was written, signed and acknowledged, as shown by the date of its execution, August 27, 1912, or about a month after the institution of the damage suit against Joseph Nunn. In the body of this deed it was, at the request of one of the grantees, ante-dated by the scrivener, as having been written March 4, 1912. The defendants lived together and are jointly associated in their interests and business enterprises. This condition existed before and after the making of the conveyance. They kept joint bank accounts, except as hereinafter stated, and each at all times, entertained a like dominion over the land described in the deed. This conveyance is sought to be set aside on the ground that it was without consideration, and was executed for the purpose of hindering, delaying, and defrauding the creditors of Joseph Nunn; that it was known by the grantees at the time of its execution to have been so made. Defendants offered no testimony at the trial, but in their depositions taken sometime prior thereto, they stated that they had paid Joseph Nunn the full amount named as the consideration in the deed. These are, in the main, the general facts in regard to the circumstances under which the conveyance was made. Others will be referred to in discussing the sufficiency of the evidence to sustain the judgment of the trial court.

I. The first contention made by the defendants is that the trial court was without jurisdiction to hear and determine this case. Circuit courts are authorized under the law, to be held at two different places in Lewis County, viz., under the general law, at Monticello, the county seat, and at Canton, under a special act, approved March 5, 1897 (Laws 1897, p. 60). This act provides, under Section 3 of same, first: "That the circuit court held at Canton shall have original and exclusive jurisdiction in all civil cases, either in law or equity, arising in that part of Lewis county lying east of the range line between ranges six and seven." A subsequent paragraph of the same section provides that "said court shall have original and concurrent jurisdiction in both civil and criminal cases."

The instant case "arises," to employ the language of the act, "in that part of Lewis county lying east of the range line between ranges six and seven." It is contended, therefore, that it should have been commenced at Canton instead of at Monticello, and, as a consequence, that the court was without authority to hear and determine the same. While the initial paragraph of said Section 3 attempts according to a literal interpretation of its terms, to confer...