Chapman v. Callahan

• Decision Date: 31 October 1877
• Citation: 66 Mo. 299
• Parties: CHAPMAN, Adm'r of Nutter, Plaintiff in Error v. CALLAHAN et al.
• Court: Missouri Supreme Court

66 Mo. 299

CHAPMAN, Adm'r of Nutter, Plaintiff in Error

v.CALLAHAN et al.

Supreme Court of Missouri.

October Term, 1877.

Error to Jackson Circuit Court.--HON. SAMUEL L. SAWYER, Judge.

This was a suit brought by Chapman as administrator of Samuel W. Nutter, deceased, against Lizzie A. Callahan, a sister of the deceased, and James M. Callahan, her husband, to enforce a vendor's lien against a tract of land in Lafayette county. The case was taken by change of venue from Lafayette to Jackson county. The petition alleged that the land had been conveyed by plaintiff's intestate to Mrs. Callahan for the sum of $13,000, and that although the deed acknowledged receipt of the money, yet, in point of fact, no part of it had ever been paid.

Defendants answered, admitting the purchase, but averring payment in full. The court submitted to a jury the question whether Mrs. Callahan had ever paid the purchase money, and the jury returned a verdict in the negative. After the rendition of this verdict, on motion of the original defendants, and against the objection of plaintiff, Hall and Jordan were made co-defendants, and on his own motion, James M. Callahan was permitted to file a separate answer, but Mrs. Callahan was not permitted to answer further. Hall and Jordan filed separate answers, each admitting the sale and conveyance to Mrs. Callahan, but denying that she ever promised to pay for the land, and averring that the deed was made by Nutter, and was accepted by her with intent to hinder, delay and defraud his, Nutter's, creditors; also, averring that they had purchased portions of the land at a sale made by plaintiff, as administrator of Nutter, under orders of the probate court, and that the money paid by them had been applied by plaintiff to the payment of the debts of the intestate. Defendant, James M. Callahan, also set up the fraudulent character of the conveyance to his wife, but disclaimed any participation in the fraud, or any knowledge of it, until the facts were developed on the trial before the jury, the transaction having occurred before his marriage.

Plaintiff replied to these answers, denying all the allegations of fraud, and charging Jordan with combining with Callahan and wife in the matter of the alleged administrator's sale. The deed was executed in July, 1868. Previous to that time a suit for divorce had been brought against Nutter by his wife, and an order had been made in her favor, allowing her $250 alimony pendente lite. Nutter was killed in October, 1868, and plaintiff was appointed his administrator.

At the trial several witnesses testified that deceased had owed them small sums ranging from $10 to $60 for groceries, clothing, &c., which they had tried, without success, to get paid during the summer and fall of 1868. Plaintiff testified that a few days after the death of Nutter, he, in company with witnesses, went to his late residence for the purpose of making an inventory of the effects. Mrs. Callahan was there: she had been living with him; she pointed out the property inventoried, and said it was all, that deceased had no other property, that she knew of no money. He further testified that the proceeds of the sale to Hall and Jordan had been used to pay the debts of the estate, amounting to some $6,000; that Mrs. Callahan's father died in 1865, leaving her 200 acres of land, some household furniture, a few farm animals and $1,000 in money. The inventory made by the witness consisted of a small amount of personalty only.

Judge Carr testified that he accompanied plaintiff when he made the inventory; that Mrs. Callahan pointed out a few articles only as the property of deceased; that she was engaged in no business; and deceased was engaged in none other than farming, not in any kind of speculation.

Another witness testified that she had been the wife of Samuel W. Nutter; that Mrs. Callahan had lived with them; that in 1868 Mrs. Callahan owned the property left her by her father, but had no income from it, and always said she had no means of paying board or building on her own land.

Another witness testified that he lived near deceased, and that after July, 1868, deceased, on one occasion, came to him to borrow money.

Thomas Wood, a nephew of Mrs. Callahan, testified that in April, 1868, he was at Nutter's house, and saw Mrs. Callahan open a trunk; there was a large pile of money in it; a while before Nutter's death, he saw him with a large amount of money in his pocket book; he said he had sold his farm, and got the money; that Nutter often told him this, giving as his reason for selling his fear of being killed, and saying he intended to move out of the country; Mrs. Callahan was in possession of the farm.

Thomas Pollard testified that he had once been a tenant of Nutter; in 1868 he had applied to Nutter to rent the same place again; Nutter said he would like to, but had sold to Mrs. Callahan; he would try to get her to let witness have it back again: he said. “All I now have is a pocket full of money; If you want some, I will let you have it.” He had his pocket full at that time; his outside coat pocket was plump full of loose money; saw him pulling it out of his inside coat pocket too.

Dennis O'Reilly testified that in the fall of 1868 he had applied to Nutter to rent land, and had received the same answer as the last witness; that he afterwards got the land from Mrs. Callahan, who wrote the lease herself.

Thos. Adamson sheriff testified that he had levied on a buggy and horse as the property of Nutter, that he had denied the ownership, saying he had sold everything to Mrs. Callahan; that she afterwards replevied them.

Several attorneys testifie that Nutter owed them for professional services in his divorce and other cases; that they had made attempts to collect their accounts in the spring and summer of 1868, but Nutter would laugh and say he had nothing to pay with just then; that they had subsequently brought attachment suits, and recovered the amounts from his administrator.

Xenophon Ryland testified that he was present at the administrator's sale, and that Jordan and James M. Callahan seemed to be acting in concert.

Mrs. Callahan testified: I never assented to the sale of any portion of said lands for the purpose of paying debts. Plaintiff suggested this course, but I told him I had bought the lands and paid my money for them, and I would not consent to any of them being sold for this purpose. I bought the property of my brother, and paid him all the money for it at once. I paid him seventeen thousand dollars in cash. I paid him thirteen thousand dollars for the lands and four thousand for the personal property. The deed for the lands was made out and delivered to me and filed for record before I paid the money, and the bill of the personal property was also delivered to me before I paid the money. On cross-examination, she stated: I paid the money at home. The deed was executed in Lexington, and filed for record on the same day. No money was paid at the time the deed was executed. I cannot tell how many days it was after the deed was executed before I paid the money, but it was not many. A man by the name of Daniel Hogan was present when the money was paid, but no one else. Hogan lived near us. My brother went and brought him to our house to witness the payment of the money. I went into another room and brought out $13,000 and counted it out for the land, and then went and got $4,000 more and counted it out for the personal property. I had none of this money at the time I went to St. Louis in the fall of 1867, or when I came back in the spring of 1868.

Question by plaintiff: State where you got the $17,000 which you say you paid to your brother? Counsel for defendants here suggested that if the witness could not answer this question without criminating herself, she would be excused for not answering it, and the court then instructed the witness accordingly. Whereupon the witness testified as follows: I cannot answer this question, or state where I got any portion of this $17,000 without criminating myself.

Daniel Hogan testified, that he came one day to Nutter's house and he had a deed which he said he had had written in Lexington on the day before. She brought in some money and paid it. I don't know how much it was. He said it was paid for the land and the stock and household furniture. The money was paid in the house where they lived. I did not count it. I don't know whether it was good, bad or indifferent. I heard them saying that it was thirteen thousand dollars for the land, and four thousand dollars for the stock and household and kitchen furniture. This payment occurred on Sunday in the parlor. They were in the sitting room when I went there, and they asked me to go into the parlor with them. No one else was present. They were making two payments, one in the morning and one in the evening. I can't read, and did not read the deed. They said it was a deed. I saw the money in the morning. I am not certain whether both payments were made in the morning or whether one was made in the morning and one in the evening. I do not know whose money was paid, or who kept it, or what became of it after it was paid. I do not know that any money changed hands and remained changed. I know Richard Carr. He lived a mile south of Wellington, and I expect I said to him there was “damned little” money passed. I didn't know how much it was. They were sitting at a round table. I was sitting at the end of the table. She counted and handed the money to him. I don't know what she did with it, or where he put it. They were so close that what one could handle the other could handle. I heard them counting, but took no heed. I don't know whether it was hundred or one dollar bills. I know a one dollar bill from a five or ten. I don't know a hundred dollar bill. I don't know whether the money was hundred dollar bills, or tens, or ones. I don't know what any of the bills were. They called on me to witness the...