Clark v. Conway

• Citation: 23 Mo. 438
• Parties: CLARK, Respondent, v. CONWAY, Appellant.
• Decision Date: 31 October 1856
• Court: Missouri Supreme Court

23 Mo. 438

CLARK, Respondent,

v.CONWAY, Appellant.

Supreme Court of Missouri.

October Term, 1856.

1. Clark v. Maguire, 16 Mo. 302, affirmed.

2. It is not sufficient to object generally that testimony offered is illegal and incompetent; some specific objection to its admission should be pointed out.

Appeal from St. Louis Court of Common Pleas.

The facts of this case sufficiently appear in the opinion of the court, and in the report of the case of Clark v. Maguire (16 Mo. 302). Upon the trial the following instruction was given to the jury, on the motion of plaintiff: “1. The burden of proving the defense of fraud rests upon the defendants.” The court, on its own motion, gave the following: “2. If the jury find from the evidence that the creation of the trust set up and shown by the plaintiff was contrived for the purpose of protecting the property, profits or earnings of Dennis Marks from his creditors, or for the purpose of hindering or delaying them in the collection of their demands against said Marks, and that the property in question was the property of said Marks, or acquired by him from his profits or earnings, then the jury should find for the defendant.” The court gave the following instructions on the motion of the defendant: “3. The fraud charged and set up by the defendant in this case is a question of fact for the jury, and they are to determine it from all the facts and circumstances given in evidence, and fraud may be proved by circumstances, as well as by positive testimony, or by both. 4. To entitle the plaintiff to recover in his action, he must show in evidence, to the satisfaction of the jury, that the property in question is the same, or a part of the same wheat and flour that was conveyed to him by the deed read in evidence, dated July 2, 1847, or that the property in question was purchased with the money or with the proceeds of the property that is mentioned in said deed, and the burden of making this proof rests with the plaintiff. 5. If the jury believe from the evidence that the property in question was in the possession of Dennis Marks at the time the same was levied upon under the execution in favor of Maguire, then the jury should find for the defendant, unless the jury shall at the same time believe from the evidence that the said property was purchased with the money or property that was conveyed and assigned to the plaintiff, under the deed made to him by J. H. Alexander, read in evidence, and the burthen of proving that the property in question in this suit was so purchased rests on the plaintiff.”

The following, prayed by defendant, were refused: “1. If the jury find from the evidence that Dennis Marks purchased and paid for the wheat that was levied upon by the defendant, and also that he purchased and paid for the wheat from which the flour that was levied upon was manufactured, and that said Marks manufactured the flour that was levied upon, and that both the wheat and the flour that was levied upon was in Marks' possession at the times of such levy; and if the jury also find from the evidence that the said wheat levied upon, and the wheat out of which the flour levied upon was manufactured, were purchased by said Marks with the money or the proceeds of the property conveyed and assigned to the plaintiff by the deed read in evidence, dated July 2, 1847; and if the jury shall also find from the evidence that Amira Marks, the wife of Dennis Marks, either placed said money or said proceeds in the hands and under the control of said Dennis Marks, or consented that said money or said proceeds should be placed in the hands and under the control of her said husband, then the jury should find for the defendant. 2. The money mentioned in the deed from Alexander to Clark, which is dated July 2, 1847, which money amounted, according to the recital of said deed, to the sum of $8,291.96, belonged to Dennis Marks by virtue of the limitations contained in the deed from H. D. Bacon to J. H. Alexander, dated 17th July, 1846; and if the jury believe from the evidence that the flour spoken of by the witness for the plaintiff was manufactured from wheat purchased with that money or its proceeds, or that the wheat seized by the sheriff was purchased with said money or its proceeds, then the plaintiff can not recover in this action. 3. If the jury find from the evidence that Dennis Marks got into his possession and under his control the money and personal property that was conveyed and assigned under the deeds read in evidence for the benefit and use of his wife, Amira Marks, and her children, and if she consented to his having such possession and...