Clark v. Thias

• Decision Date: 31 March 1903
• Citation: Clark v. Thias, 173 Mo. 628, 73 S.W. 616 (Mo. 1903)
• Parties: CLARK v. THIAS, Pub. Adm'r, et al.
• Court: Missouri Supreme Court

73 S.W. 616

173 Mo. 628

CLARK v. THIAS, Pub. Adm'r, et al.

Supreme Court of Missouri, Division No. 2.

March 31, 1903.

ALLOWANCE BY PROBATE—COLLATERAL ATTACK — WITNESS — TRANSACTION WITH DECEDENT —AGENTS—HOMESTEAD — PRIOR ACQUIRED ESTATES—INTEREST IN COMMON— POSSESSION — RECORDING DEED — FRAUDULENT CONVEYANCE—BURDEN OF PROOF.

1. The allowance by the probate court of a note against intestate's estate has the effect of a judgment, which cannot be collaterally attacked by evidence that the note had no consideration, in a suit to set aside as fraudulent a conveyance by intestate, and to subject the property to payment of the allowance.

2. One who makes a contract as agent is not a party in interest, so as to be disqualified as a witness after the death of the other party.

3. Under Gen. St. 1865, p. 450, § 7, providing that the homestead shall be subject to attachment execution on causes of action existing at the time of acquiring the homestead, which shall be the date of filing for record the deed of the homestead, and shall not be subject to attachment or execution on any liability "hereafter created," the homestead exemption attached to estates existing when the law went into effect, as against after-contracted debts.

4. One may acquire a homestead right in property in which she has only an interest in common.

5. One's occupancy of land in which she has only an interest in common draws to it contiguous land, owned exclusively by her, so as to make it all a homestead; its extent and value being within the limit.

6. Under Gen. St. 1865, p. 450, § 7, providing that the time of acquiring a homestead shall be the date of filing for record the deed thereof, property is not exempt, as a homestead, against debts contracted after a deed therefor was obtained and it was occupied, but before the deed was recorded.

7. A voluntary conveyance is not fraudulent per se as to existing debtors, but, in a suit by creditors to set it aside, the grantee has the burden of establishing the circumstances which repel the presumption of a fraudulent intent.

Appeal from Circuit Court, Franklin County; R. Hirzel, Judge.

Action by J. R. Clark against F. H. Thias, public administrator, and others. Judgment for plaintiff. Defendants appeal. Reversed.

John W. Booth and Jesse H. Schaper, for appellants. James Booth and W. H. Clark, for respondent.

FOX, J.

The plaintiff commenced this action against the defendants, F. H. Thias, as administrator of the estate of Mary Larkin, deceased, Adella Walz, and Sarah Lucy, in the circuit court of Franklin county, Mo., February 28, 1899, by filing his petition to set aside a certain deed of conveyance of real estate from Mary Larkin to defendant Adella Walz in trust to herself and her codefendant Sarah Lucy, alleged to have been made voluntarily and without any consideration, with intent to hinder, delay, and defraud the creditors of said Mary Larkin. Writs of summons issued, duly executed March 22, 1899, and made returnable to the April term of said circuit court, 1899; and, the parties having joined issues, the cause came on for trial at the following September term, to wit, October 27, 1899. The court found the issues for the plaintiff, and rendered judgment accordingly, and thereupon at the same term of court, to wit, October 28, 1899, the defendants filed a motion for a new trial, which was sustained and a new trial granted by the court at its December term, 1899. And thereafter, at the April term of said court, the plaintiff filed his amended petition, which, in substance, alleged: "That F. H. Thias is the public administrator of Franklin county aforesaid, and as such has in charge, under the order of the probate court of the said county of Franklin, made and entered on the ___ day of ___ of the year 189-, and is administering on, the estate of ___ day of ___ of the year 1894 the said Mary Larkin and one James Larkin, for a valuable consideration, executed and delivered to the firm of Clark & Martin their certain promissory note, by which, for value received, they promised to pay to said Clark & Martin, one day after date, the sum of $180, with interest thereon from date at the rate of 6% per annum, compounded annually, and that on the ___ day of November, 1894, said note was accidentally destroyed by fire. And that on the 19th day of August, 1895, the said Mary Larkin and James Larkin, well knowing that said note had been destroyed, executed and delivered to said Clark & Martin their certain promissory note, by which, for value received, they promised to pay said Clark & Martin, one day after date, the sum of $180, with interest from date at the rate of six per cent. per annum. That said last note was so executed and delivered to said firm in re-execution and in renewal of the said note so destroyed by fire. That thereafter said firm of Clark & Martin, for a valuable consideration, assigned and delivered said note to this plaintiff. That said Mary Larkin died intestate about the ___ day of ___ of the year ___. Plaintiff states: That on the 6th day of February, 1899, he presented said note for allowance against the estate of said Mary Larkin to the probate court of said county, and, the said administrator having waived notice of the presentment of same, the amount due on said note, to wit, the sum of $219.47, was duly allowed by said court, and classified as a demand of the fifth class against said estate, with interest thereon from date of said allowance at the rate of 6 per cent. per annum. That said allowance, together with the interest thereon, is still due plaintiff, and no part of the same has ever been paid. That at the time of the execution and delivery of said last-mentioned note said Mary Larkin was the owner in fee of the following described real estate in the aforesaid Franklin county, to wit: The S. E. ¼ of the S. W. ¼ of section 5 in township number 41, range 2 W., and the undivided one-half of the S. W. ¼ of the S. W. ¼, and the fractional part, containing 25 acres, being the south part of the N. E. ¼ of the S. W. ¼ all being in section 5 in the township and range aforesaid. That on the 23d day of September, 1895, said Mary Larkin made and executed and delivered to defendant Adella Walz her certain warranty deed, by which, for a purported consideration of $1, and for love and affection, she purported to convey said premises to said Adella for the uses and purposes following; that is to say, to said Mary Larkin's own use during her natural life, and after her decease to the use of her beloved daughter, Sarah Lucy (one of the defendants herein), all of the benefits and profits derived from the above-described lands, after paying all necessary expenses in keeping the farm in good running order, and the taxes that may be levied on the same, which said deed is of record in the office of the recorder of deeds within and for said county of Franklin, in Deed Book, volume 44, at page 525. That, as a matter of fact, there was no consideration for the making of said deed, but that the said deed was a voluntary deed made by said Mary Larkin for the purposes and with the intent to hinder, delay, and defraud the creditors of her, the said Mary, and that said grantees in said deed at the time of the execution and delivery thereof had full and complete notice of the said intent of the said Mary. That the said James Larkin is now, and was at, all and singular, the times referred to in this petition, insolvent, and that the said Mary at the time of her death owned no property other than the real estate herein described. Wherefore plaintiff prays that the title to said premises be divested from defendants Adella F. Walz and Sarah Lucy, and revested in the estate of said Mary Larkin, and that the same be subjected to the lien and payment of plaintiff's said allowance, and for such other and further relief as to the court may seem just and equitable."

To the above amended petition the defendants filed their joint answer. Admit the death of Mary Larkin, and that F. H. Thias is the administrator of the estate of said decedent; that said Mary on the 19th day of August, 1895, executed and delivered to the firm of Clark & Martin her promissory note of that date, on its face expressed to be for value received, and thereby promised to pay to the order of said Clark & Martin, one day after date, the sum of $180, with interest from date at the rate of 6% per annum, and that said note was presented and allowed against the estate of said Mary Larkin as alleged in said petition, and that at the time of the execution and delivery of said note said Mary Larkin was the owner in fee of the real estate described in said petition, and that said Mary Larkin, at the times in said petition alleged, executed and delivered the deed of conveyance in said petition referred to; and that said deed was recorded and is of record as alleged in said petition. But defendants deny that the said deed of conveyance was made with intent to hinder, delay, or defraud creditors of said Mary. And defendants deny each and every allegation in said petition made, not heretofore admitted, and aver that the said note so executed and delivered on the 15th day of August, 1895, was by the said Mary Larkin so executed and delivered without any consideration whatever. And having fully answered, defendants ask to be discharged with their costs.

Motion to strike out: Thereafter, on the same day, to wit, on April 16, 1900, during said April term of court, 1900, plaintiff filed his motion "to strike out all that part of the answer of defendants to the amended petition of plaintiff which pleads that the said note so executed and delivered on the 15th day of August, 1895, was by said Mary Larkin so executed and delivered without any consideration whatever, for the reason that the consideration is conclusively shown by the allowance of said note by the probate court of this county, and that the said action of the probate court is res...