Cator v. Collins

• Decision Date: 16 May 1876
• Citation: 2 Mo.App. 225
• Parties: R. W. CATOR et al., Respondents, v. JOHN W. COLLINS et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 225

R. W. CATOR et al., Respondents,

v.JOHN W. COLLINS et al., Appellants.

St. Louis Court of Appeals, Missouri.

May 16, 1876.

1. A motion to suppress or exclude a deposition for want of notice of the taking of it, made for the first time at the trial of a cause, the deposition having been on file for more than nine months, and there being a rule of court requiring that all exceptions for such cause should have been filed more than six months before, was properly overruled.

2. A motion, made for the first time during the trial, to dismiss a suit for want of security for costs was properly overruled.

3. Where the petition charges fraud in fact in respect of a deed, and the deed is fraudulent in law, the evidence as to fraud in fact being conflicting, and the finding of the court is for the plaintiff generally, there is no reason for saying that there is a want of correspondence between the allegations and the proofs.

4. A deed is fraudulent and void as to creditors, and will be presumed to have been contrived with that intent, if, by its terms, the property is left in the hands of the grantor with power of sale.

APPEAL from St. Louis Circuit Court.

Affirmed.

R. S. Voorhis, for appellants, cited: Voorhis v. Langsdorf, 31 Mo. 451; Stanley v. Bunce, 27 Mo. 270; Billings v. Bunce, 28 Mo. 547; Decker v. D'Oench, 31 Mo. 453; Bryan v. Penix, 18 Mo. 13; Bennett v. Robinson, 19 Mo. 654-658; Johnson v. Jeffries, 30 Mo. 423; Bevins v. Bolton, 31 Mo. 437; Eaton v. Perry, 29 Mo. 96; Howell v. Bell, 29 Mo. 135; Henderson v. Henderson, 55 Mo. 555; Carlton v. Patterson, 29 N. H. 580; Cushman v. Wooster, 45 N. H. 410; Hendricks v. Craig, 2 South. 567; Wilson v. Cornell, 1 South. 117: Lightfoot v. Cole, 1 Wis. 26; Pickett, Exr., v. Ford, 4 How. 246; Farmers and Mechanics' Bank v. Hathaway, 36 Vt. 539-546; Unis v. Charlton, 12 Gratt. 20; Garnett v. Yoe, 17 Ala. 74; Bryant v. Ingraham, 16 Ala. 116-120.

L. Eaton and Nagel & Wislizenus, for respondents, cited: Brooks v. Wimer, 20 Mo. 503; Reed v. Pelletier, 28 Mo. 173; Billingsley v. Bunce, 28 Mo. 547; Stanley v. Bunce, 27 Mo. 270; Lodge v. Samuels' Exr., 50 Mo. 204; Bump's Fr. Conv. 163, n. 1, 164; Voorhis v. Langsdorf, 31 Mo. 453; Roberts' Fr. Conv. 189; Ames v. Blunt, 5 Paige, 13; Farmers' Bank v. Douglass, 11 Smed. & M. 470; Baker v. Bartol, 6 Cal. 482; Sturtevant v. Ballard, 9 Johns. 343; Pettibone v. Stevens, 15 Conn. 26; Decker v. D'Oench, 31 Mo. 453; Alexander v. Warrance, 17 Mo. 228; Hepburn v. Dunlop, 1 Wheat. 179; Holmes v. Fish, 9 Mo. 201.

GANTT, P. J., delivered the opinion of the court.

Respondents sued appellants to the February term, 1874, of the St. Louis Circuit Court. They claimed to be partners, and alleged that they had sold and delivered to Louisa Collins certain merchandise, in December, 1872; that Louisa Collins was, for a long time before said sale and delivery, a dealer in millinery and straw goods, in Missouri, possessed of a large stock of goods to her belonging in her own right, and as her own separate property; that she was the wife of John W. Collins, one of defendants, and carried on this particular business on her own account, with the consent of her husband, who was engaged in another business, neither interfering with, nor participating in, the profits of the business of the said Louisa; and that said John W. Collins was her trustee in respect of this property, and that, by deed dated December 4, 1873, she and he conveyed the property to R. S. Voorhis in trust, to secure to Worthington and Voorhis the payment of certain notes described in said deed; that said notes were wholly without consideration; the deed was fraudulent and void, as being intended to hinder, delay, and defraud creditors; and asking for a decree subjecting all of said property to the payment of the price of the merchandise by respondents sold to Louisa. John W. and Louisa Collins, Voorhis, and Worthington & Co. were made parties defendant.

Answers were filed by Voorhis, Worthington & Co., denying fraud in the making of the deed; denying that the property conveyed was the separate estate; denying that, in contracting the debt, she promised to charge her separate estate; denying that the deed was without consideration; denying all knowledge of the debt from Louisa to plaintiffs; denying all knowledge, at the time of taking the deed, of any other indebtedness on the part of Louisa, and charging an intent on the part of Louisa to defraud Worthington and Voorhis, which led to the taking possession of said stock by the trustee in said deed.

A replication was filed, denying that defendants, at the time of taking the deed, had no notice of the debt to the plaintiffs; denying that Louisa represented herself as free from debt when she purchased from Worthington and Voorhis, and denying the attempt of Louisa to defraud Worthington and Voorhis.

There was a trial in February, 1875, before the court, sitting as a jury, and a verdict and judgment were given for plaintiffs. A motion in arrest of judgment was filed and overruled. A motion for a rehearing was also filed and overruled. When these motions were respectively filed does not appear. Counsel should be careful to show by the record the date of such filing. It does appear that “defendants duly filed their motion to set aside the decree,” and that “they also filed their motion in arrest of judgment.” It does not appear whether either motion was filed within four days, unless this is an inference from the use of the word “duly,” which may admit of doubt; but this only applies, at most, to the motion for a rehearing. It is not intended to comment further on this matter, however.

The motion for a rehearing alleged, for causes, that the finding of the court, that the deed in evidence was against the statute and void as to creditors, is erroneous, and that the decree was against evidence and against law.

The motion in arrest set forth that the pleading did not present an issue upon the face of the deed complained of; that no issue was tendered as to the legal effect of the deed; that there is no allegation that the deed is void on its face as to creditors, and the finding of the court was upon an issue not raised by the pleadings.

The Circuit Court, at general term, affirmed the judgment, and the case comes here by appeal.

At the trial the deed from John W. and Louisa Collins to R. S. Voorhis was read. It was dated November 4, 1873, and purported to be executed by John W. Collins, trustee of Louisa Collins, by her direction, party of the first part, R. S. Voorhis, of the second part, and Worthington and Voorhis, of the third part. It conveyed to the trustee “all the millinery goods, consisting of ribbons, feathers, flowers, bonnets, etc., and all store-fixtures and gas-fixtures, at 806 North Fifth street, in St. Louis, being the same goods and fixtures this day conveyed by parties of the third part to John W. Collins, as trustee of Louisa Collins,” for her sole and separate use, also, other goods, now in another store occupied by said Louisa, on Franklin avenue, and, “also, all and singular such goods and merchandise as shall be added to the stock, from time to time, as the present stock is disposed of in the course of trade;” in trust that, whereas Louisa had executed to Worthington and Voorhis her six negotiable promissory notes, of even date with said deed--one for $150, payable thirty days after date; another for $250, at sixty days; one for $150, at ninety days; one for $400, at six months; one for $200, at eight months; and one for $475, at nine months after date, all bearing 10 per cent. after date-- if any of said notes should be unpaid, then the trustee might proceed to sell the property, etc., “at the most convenient place” in the city of St. Louis, to the highest bidder, “first giving twenty days' public notice” of the sale, “either by publication in some newspaper or by hand-bills, or by both.”

Certain depositions were offered by plaintiffs, which had been filed in May, 1874, in term time, and no exceptions had been filed to them according to the rules of practice of the court At the trial the defendants objected that it did not appear that due notice of the taking of the depositions had been given to the defendants. The rule of court required all such objections to be filed, at latest, at the June term, 1874. The court overruled the objection, and defendants excepted.

Louisa Collins was examined by plaintiffs, and testified in such manner as to support the allegations of the petition. Mr. Voorhis contradicted her in several particulars. The debt of plaintiffs, their partnership, and other formal matters were proved.

No instructions were asked, the case being one of chancery jurisdiction, but the decree was as before stated.

To reverse the judgment of the Circuit Court, the appellants make the following points:

1. “The question of fraud made by the pleadings is fraud in fact; and, under this allegation, fraud in law cannot be shown.”

2. “The court erred in overruling the motion made, at the trial, to dismiss the suit for want of security for costs.”

3. “The court erred in permitting the deposition of W. J. Watters to be read.”

We will consider these points in inverse order.

1. The deposition was properly admitted. The rule of practice in the Circuit Court is very clear, and applies exactly. If the defendants had any real objection to this deposition--if, in fact, they had no notice of its being taken, and desired to challenge or dispute any fact established by it, it is inconceivable that they should not, in the nine months during which the deposition had been on file, have moved to suppress it. If such a motion had been made a little out of time, as--at the end of ten days--at the June term, 1874, with any fair excuse for the delay, we should be disposed to say that the rigor of the rule should be relaxed, and the plaintiff should be obliged to take the deposition over again, when defendants might cross-examine....