Black v. Epstein

• Decision Date: 08 June 1909
• Citation: 120 S.W. 754,221 Mo. 286
• Parties: MAURICE H. BLACK v. SIMON EPSTEIN et al.; MARCUS EPSTEIN, Appellant
• Court: Missouri Supreme Court

120 S.W. 754

221 Mo. 286

MAURICE H. BLACK v. SIMON EPSTEIN et al.; MARCUS EPSTEIN, Appellant

Supreme Court of Missouri, Second Division

June 8, 1909

Appeal from St. Louis City Circuit Court. -- Hon. Matt. G. Reynolds Judge.

Affirmed.

F. A. & L. A. Wind and Barclay & Fauntleroy for appellant.

(1) The court erred in admitting in evidence the deposition of defendant, because defendant was in court in person and the deposition contained no admission which tended to sustain the allegations of the bill. (2) The court erred in excluding the testimony offered as to the reputation of defendants Simon and Marcus Epstein, who were charged with having committed an actual, not a constructive fraud. Greenleaf on Evidence, sec 54; O'Bryan v. O'Bryan, 13 Mo. 15; Bank v. Worthington, 145 Mo. 91; Miller v. Miller, 14 Mo.App. 418. (3) Under the law and evidence the decree should be for defendant. (a) Both the mortgagor and mortgagee testified that the mortgage was given to secure an actual bona-fide indebtedness of $ 30,000, and there was no evidence to the contrary. (b) Fraud must be established by evidence. Mere suspicion will not suffice. Waddingham v Loker, 44 Mo. 132; Funkhouser v. Lay, 78 Mo. 462; Robinson v. Dryden, 118 Mo. 534; Bank v. Worthington, 145 Mo. 91; Crow v. Andrews, 24 Mo.App. 160. And must be proven beyond a reasonable doubt. Dallam v. Renshaw, 26 Mo. 544, by Scott, J. (c) The facts being as consistent with an honest as with a dishonest purpose, the presumption is against the allegation of fraud. Dallam v. Renshaw, 26 Mo. 544; Funkhouser v. Lay, 78 Mo. 462; Webb v. Darby, 94 Mo. 621; Ridge v. Greenwell, 53 Mo.App. 479. (d) The mortgagor had a perfect right to prefer his brother, even if by so doing nothing remained for other creditors. Wood v. Porter, 179 Mo. 56; Trebus v. Henderson, 180 Mo. 616. (e) Even if the purpose of the mortgagor was to defraud Black, and the mortgagee knew of that purpose, the mortgagee had a right to demand and receive the mortgage as security for a bona-fide debt then existing. Dougherty v. Cooper, 77 Mo. 528; Rupe v. Alkire, 77 Mo. 641; Bank v. Gailey, 177 Mo. 181. (4) The evidence of August Gehner, a witness for plaintiff whose judgment of real estate values in St. Louis will not be questioned, shows that one piece of property covered by the mortgage was worth, in 1901, $ 35,000 or $ 5,000 more than the mortgage, and is increasing in value. This with the Sidney street property is ample to satisfy plaintiff's demand -- hence plaintiff is not injured by the mortgage. Bank v. Worthington, 145 Mo. 91.

Chester H. Krum and Albert C. Davis for respondent.

(1) The court did not commit error in excluding answer to the question asked as to the reputation of Simon and Marcus Epstein. (a) No proper foundation was laid for the question, as it was not shown that the witness knew the reputation of the Epsteins. 5 Am. and Eng. Ency. Law (2 Ed.), 879. (b) Evidence of character is incompetent in a civil suit, unless by the pleadings it is brought in issue. Ward v. Herndon, 5 Port. (Ala.) 382; Church v. Drummond, 7 Ind. 17; Gebhart v. Burkett, 57 Ind. 378; Simpson v. Westenberger, 28 Kan. 756; Dudley v. McCluer, 65 Mo. 241; Porter v. Seiler, 23 Pa. St. 424; Gutzmiller v. Lackman, 23 Mo. 168; Stark v. Publishers, 160 Mo. 529. (c) A charge of fraud does not involve character. Ward v. Herndon, supra; Paures v. Armstrong, 62 Ark. 267; Stow v. Converse, 8 Conn. 325; Ins. Co. v. Jachnicher, 110 Ind. 59; Simpson v. Westenberger, supra; Judge v. Webb, 6 Me. 14; Martin v. Good, 14 Ind. 398; Haywood v. Reed, 4 Gray 574; Klein v. Bayer, 81 Mich. 233; Dudley v. McCluer, 65 Mo. 241; Vawter v. Hultz, 112 Mo. 633; Gordon v. Miller, 111 Mo.App. 342. (2) The depositions of defendants were admissible in evidence. Bogie v. Nolan, 96 Mo. 85; Kritzer v. Smith, 21 Mo. 296; Charleston v. Hunt, 27 Mo. 34; State ex rel. v. Bank, 80 Mo. 626; Pomeroy v. Benton, 77 Mo. 82. (3) Respondent has the right, if the deed of trust is without consideration and fraudulent and void, to sue to set the same aside regardless of the relative value of the ground to the amount of the deed of trust. Bank v. Doran, 109 Mo. 40; Lionberger v. Baker, 88 Mo. 447. (a) Gehner's testimony as to value was at best only a guess. (b) Simon Epstein testified both pieces of property were worth $ 29,000. How reliable he is, the record has abundantly shown. (4) The transcript not containing all the evidence introduced in the trial court and appellant's abstract being likewise deficient in omitting the written admissions of appellant, this court will affirm the judgment of the trial court. Vandeventer v. Gross, 190 Mo. 239; McCullough v. DeWitt, 163 Mo. 306; Doherty v. Noble, 138 Mo. 32; Wentzville Tobacco Co. v. Walker, 123 Mo. 670; Mitchell v. Mitchell, 191 Mo. 475; Bradley v. Bradley, 119 Mo. 58; Reed v. Peck, 163 Mo. 333. (5) The judgment should be affirmed upon the showing made by appellant. (a) The evidence did not create a suspicion; it proved actual fraud. (b) It is true that both the Epsteins testified that the deed of trust was given to secure a bona-fide indebtedness, but the record does not present the first case where interested parties have unblushingly falsified when testifying in their own behalf. (c) When an appellant is afraid to have his own evidence brought before the appellate court, it must be presumed that it was omitted because it was adverse.

OPINION

FOX, J.

This action was begun on September 19, 1902, in the circuit court of the city of St. Louis by Maurice H. Black against Simon Epstein, Frank Heimenz and August Gehner. On November 4, 1903, an amended petition was filed by which Marcus Epstein was also made a party defendant.

The object of the action is to set aside a deed of trust made by Simon Epstein on January 8, 1901, to August Gehner, as trustee, and Frank Heimenz as party of the third part, to secure a note of $ 30,000, made to said Heimenz, which said note and deed of trust were transferred to the defendant, Marcus Epstein, on the grounds, as alleged, that said deed of trust was made to hinder, delay and defraud the plaintiff and other creditors of Simon Epstein, and to cover up and conceal the property of Simon Epstein from plaintiff and his other creditors. It is alleged that said deed of trust and the note of $ 30,000 secured thereby, were wholly without consideration; that Simon Epstein was not indebted to Heimenz, and that the assignment and transfer of said deed of trust and note from Heimenz to Marcus Epstein were wholly without consideration and made to hinder, delay and defraud the plaintiff, and to prevent him from collecting a just claim against defendant, Simon Epstein; it is also alleged that said deed of trust was conceived by Simon Epstein and Marcus Epstein for the purpose of covering up and concealing the ownership of the property of Simon Epstein, and to hinder, delay and defraud the plaintiff. Plaintiff prayed that said deed of trust be declared null and void as to plaintiff, and that the real estate therein described be subjected to the lien of certain judgments of plaintiff obtained against said Simon Epstein.

The answer was a general denial.

Judgment was rendered for plaintiff in accordance with the prayer of the petition on September 28, 1904. From this judgment Marcus Epstein appealed to this court.

The evidence developed upon the trial was substantially as follows: On August 16, 1900, respondent Black commenced an action in the circuit court of the city of St. Louis against Simon Epstein which resulted in a judgment in favor of Black and against said Epstein on February 4, 1901, in the sum of $ 3,171.73, with interest thereon from date of judgment at six per cent per annum. Afterwards Black began another action in said circuit court of the city of St. Louis against said Simon Epstein on another cause of action, which resulted in a judgment against said Epstein on June 20, 1902, in the sum of $ 3,490.56, with interest thereon from date of judgment at six per cent per annum. At the time of rendering judgment in this cause said two judgments amounted, with interest, to $ 7,710.10. At the time of the commencement of the above described two suits Simon Epstein was the owner of the real estate described in respondent's petition.

On the 8th day of January, 1901, Simon Epstein executed and delivered a deed of trust to August Gehner, as trustee, and Frank Heimenz, as party of the third part, which deed of trust was duly recorded in the office of the recorder of deeds in the city of St. Louis, on January 12, 1901. Said deed of trust purported to secure a note of $ 30,000 made to said Heimenz and embraced the real estate described in the petition. Immediately after said deed of trust and note were executed they were assigned and transferred by Heimenz to Marcus Epstein. It is conceded that no consideration of any kind passed from Heimenz to Simon Epstein, or from Marcus Epstein to Heimenz. It is also conceded that if there was any consideration moving the execution of said deed of trust and note it consisted of past debts owing by Simon Epstein to Marcus Epstein. The said deed of trust embraced all the property of Simon Epstein, including personal property, and there remains no other property upon which executions might be levied or out of which said judgments could be satisfied.

Frank Heimenz testified that he was working for the Title Guaranty Trust Company when deed of trust was made; he had no recollection of the transaction. Simon Epstein did not owe him anything, nor was there any consideration passing from him to Simon Epstein, nor from Marcus Epstein to him for the note and deed of trust. He indorsed the note without recourse -- that was the usual way of doing business in the office.

August Gehner t...