Bartlett v. Behrens

• Decision Date: 19 March 1888
• Parties: Bartlett, Appellant, v. Umfried et al
• Court: Missouri Supreme Court

7 S.W. 581

94 Mo. 530

Bartlett, Appellant, v. Umfried et al

Supreme Court of Missouri

March 19, 1888

Appeal from Benton Circuit Court. -- Hon. J. B. Gantt, Judge.

Affirmed.

M. A Fyke and P. D. Hastain for appellant.

(1) The court erred in excluding the evidence of Schenework as to statements made by defendant, E. Umfried. Fisher v Lewis, 69 Mo. 629; Holmes v. Braidwood, 82 Mo 610. (2) The court erred in excluding the letters written by defendant, A. Behrens. Burgert v. Borchert, 59 Mo. 80; Darrett v. Donnelly, 38 Mo. 482; State v. Schnider, 35 Mo. 533; Morey v. Staley, 54 Mo. 419. (3) Under the evidence in the case the decree should have been for plaintiff. Alt v. Bank, 9 Mo.App. 91. (4) The court erred in overruling plaintiff's motion for a new trial.

E. J. Smith and J. H. Lay for respondents.

(1) The three hundred and eighty dollars, proceeds of the wife's labor, etc., was her money, and could not be taken for the husband's debts. Coughlin v. Ryan, 43 Mo. 99; Kidwell v. Kirkpatrick, 70 Mo. 214; Wood v. Broadley, 76 Mo. 23; State ex rel. v. Gregory, 14 Mo.App. 582; 2 Story's Equity, secs. 1375 and 1387. The six hundred dollars, furnished by her father, was the wife's. R. S., sec. 3296. The rent of the land was hers. R. S., sec. 3295. No error was committed in excluding the testimony of Schenework. The letters of Behrens were also properly excluded. By examining him as to them, plaintiff got the same advantage as if they had been admitted. Hambright v. Brockman, 59 Mo. 52; Bank v. Russell, 50 Mo. 531; Weinrich v. Porter, 47 Mo. 293. (2) Should the court have granted a new trial to give plaintiff an opportunity to contradict her own witness by his books? We say no. Bragg v. Moberly, 17 Mo App. 221; Jacob v. McLean, 24 Mo. 40; Griffin v. Veil, 56 Mo. 310; R. S., sec. 3704.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

It appears from the record in the case that, on the twenty-third of July, 1881, defendant, Emil Umfried, killed Walter Bartlett, plaintiff's husband, and that plaintiff commenced suit against said Umfried to recover five thousand dollars damages for the killing of said Bartlett; that summons was served on the twenty-ninth of September, 1881, and in February, 1883, she recovered judgment for five thousand dollars, upon which execution was issued and returned unsatisfied.

This suit was begun by plaintiff on the nineteenth of April, 1884, for the purpose of having the court declare a certain deed fraudulent and void from defendant, Behrens, to defendant, Augusta Umfried, dated the fourth of March, 1882, conveying to her certain lands in Benton county, and to subject said lands to sale for the payment of her judgment. It is charged in the petition that, in February, 1882, defendant, E. Umfried, purchased the property of one J. M. Cook, and for the purpose of cheating and delaying plaintiff in the collection of her demand, for which suit was pending, confederated with defendant, Behrens, and caused said Cook to convey said property to said Behrens, the consideration for which, it is alleged, was paid by said Behrens. It is also averred that said Behrens, in furtherance of the fraudulent purpose of said E. Umfried, on the fourth of March, 1882, conveyed by deed the said property to Augusta Umfried, the wife of defendant; that this deed was voluntary, and made by said Behrens, and accepted by said A. Umfried, for the purpose of cheating and defrauding plaintiff.

The answer is a denial of all combination or fraud in the execution of the deeds referred to in the petition. On the trial judgment was rendered for the defendants, from which the plaintiff has appealed, and insists that, under the evidence, the judgment should have been for plaintiff. Behrens, who was introduced as a witness, testified that, in 1868, he formed a partnership with Emil Umfried in the mercantile business. They did business in the town of Lincoln, Benton county, which continued till about the thirtieth of July, 1881, when said Behrens, as he states, believing that it would be injurious to the business, in consequence of the difficulty resulting in the death of Bartlett, for said Umfried to remain in said firm as a partner, bought Umfried out, giving him for his interest his note for four thousand dollars, which he subsequently paid, and also conveying to him, by quitclaim deed, his interest in the homestead in which said Umfried lived. Behrens had no family, but lived in the house with the family of Umfried, under an arrangement that he was to furnish one-third of the supplies, and that it was understood that Mrs. Umfried might keep boarders and transient customers, and the money she made in this way was to belong to her. He also testified that, after buying out Umfried, he opened up a correspondence with his brother in Philadelphia to induce him to come out and buy an interest in his business and also the homestead of Umfried to live in; that, with a view of consummating this arrangement, he bought the homestead of said Umfried in February, 1882, for one thousand dollars; that, while said negotiations were going on, he and Umfried were negotiating to buy the property in question from Cook for a house for his family.

The evidence shows that Umfried applied to Cook to buy the land involved in this suit in February, 1882; that it was encumbered by a deed of trust to secure the payment of seven hundred and fifty dollars, and that Cook agreed to sell for two hundred and fifty dollars, the purchaser assuming the payment of the...