Colbern v. Robinson

• Decision Date: 31 October 1883
• Citation: 80 Mo. 541
• Parties: COLBERN et al., Appellants, v. ROBINSON.
• Court: Missouri Supreme Court

80 Mo. 541

COLBERN et al., Appellants,

v.ROBINSON.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Johnson Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

E. A. Nickerson, G. N. Elliott and Comingo & Slover for appellants.

The note and deed of trust were fraudulent and void, because given for a sum largely in excess of the amount actually due from Holwell to respondent, and for the purpose of hindering and delaying creditors. Kerr on Fraud, 196, note, 192, 195; Bump on Fraud. Convey., 85, 239, 272; Sands v. Codwin, 4 John. 585; Curtis v. Leavitt, 15 N. Y. 9; Small v. Beachly, 2 Vt. 602; Allen v. Berry, 50 Mo. 90; Pettibone v. Stevens, 15 Conn. 19; Young v. Wilson, 24 Barb. 510; Armstrong v. Winfrey, 61 Mo. 358. If the deed of trust is void for fraud, there can be no re-imbursement, and the title of plaintiff must be quieted. Bump on Fraud, 573; Borband v. Walker, 7 Ala. 269; Butts v. Peacock, 23 Wis. 359; Webb v. Brown, 3 Ohio St. 246; Bean v. Smith, 2 Mason 296; Jackson v. Marshall, 3 Am. Dec. 695; Bigelow v. Stinger, 40 Mo. 195; Pilling v. Otis, 13 Wis. 495.

John J. Cockrell and O. L. Houts for respondent.

A deed executed by a debtor to a creditor, in good faith, is good as to the whole world, even though there be other creditors, and they be neither secured nor paid. A fraud upon creditors consists in the intention to prevent them from receiving their just dues by an act which withdraws the property of the debtor from their reach. This is true as is the converse, that where the necessary consequences of a debtor's acts are to deprive his creditors of their debts they are fraudulent, however pure his motives. Bump on Fraud. Convey., (2 Ed.) pp. 19, 22, 23, 24, 25, 26. The creditors of a party defrauded have no right even though the fraud has the effect to diminish his means of paying them, to look into such fraud and unravel it. The right is a personal one. Bump on Fraud. Convey., (2 Ed.) pp. 17 18; Eatin v. Perry, 29 Mo. 96. The testimony of the debtor as to a conveyance, is merely his opinion of the transaction, and is of little value. The deed must be tested by rules established by law and experience. Potter v. McDowell, 31 Mo. 62, 74; Bump on Fraud. Convey., (2 Ed.) pp. 574, 575. In equitable cases where there is substantial evidence to support a finding, the appellate court will not enquire into its weight. Hedges v. Black, 76 Mo. 537.

HOUGH, C. J.

On the 2nd day of August, 1877, James Holwell executed a deed of trust conveying to I. W. Rogers, as trustee, certain land in Johnson county to secure the payment of a promisory note for the sum of $2,483, made by said Holwell to the defendant, and payable on the 2nd day of August, 1878. The real estate covered by the trust deed was worth about $10,000. Holwell also owned at that time 120 acres of land in Henry county, and personal property worth nearly $4,000, and owed in addition to the note secured by the trust deed, other debts amounting to $2,500.

On the 18th of June, 1878, the Warrensburg Savings Bank recovered two judgments against Holwell; one for $375 and one for $379.13; and on June 19th, 1878, the Johnson County Savings Bank recovered judgment against Holwell for $515.95. Under the two judgments first mentioned, the real estate covered by the deed of trust was sold to E. A. Nickerson, for the sum of $10.50, and passed by sundry mesne conveyances to the plaintiff, the Warrensburg Bank; and under the judgment last mentioned, said real estate was also sold to the plaintiff, Colbern, for the sum of $9. On the 9th of Sept., 1878, the defendant sold the land under the deed of trust, and purchased the same at said sale. In Nov., 1878, the plaintiffs instituted this suit to set aside the trust deed and the sale thereunder, and to divest the defendant of title and invest plaintiffs therewith, on the ground that said trust deed was fraudulent and void as to creditors. The petition alleges that the note secured by the deed of trust was for the sum of $1,368.38 in excess of the real indebtedness of Holwell to the defendant when said note and deed were executed; and, after setting forth that said Holwell was enfeebled in mind and diseased in body, and greatly disturbed and distressed by reason of certain family dissensions which culminated in an assault upon his wife, proceeds as follows: “Your petitioners further charge that at the date of the execution of said trust deed the defendant well knew the said Holwell was so far impaired in the faculties of his mind as to be mentally incapable of the government of himself and the management of his own affairs and business, and was so physically weak and melancholy and despondent, by reason of the disease with which he was then afflicted, and the difficulty with his wife, and the prospect of his indictment and punishment, as steadily kept before his mind and pressed upon him by said defendant, that he was entirely in the power of said Robinson, and executed and signed whatever papers he was directed to by said defendant, without any active memory in the premises, or exercising any reason or judgment in the matter.

Your petitioners charge that the flattery, false pretense, cunning, undue means, tricks and subterfuge brought to bear upon the said Holwell by said defendant, in connection with the then known bodily and mental disease of the said Holwell rendered him powerless in the hands of defendant to protect himself and to transact any business save as directed by the said defendant.”

After thus stating facts which, in connection with other matters alleged, would afford sufficient ground for a suit by Holwell to set aside said deed of trust as to excess of said note over his real indebtedness, the petition, at some risk of inconsistency, proceeds as follows; “Your petitioners further charge that although it is true that at the time of and prior to the execution of said deed of trust the said defendant well knew that said Holwell was then a man of weak understanding; was harassed with his nervousness, in great despondency and was overwhelmed with calamities and was of so great weakness of mind as to be unable to guard against imposition or resist importunity and undue influence, yet the said defendant, knowing that the said Holwell confided in him and acted upon his advice and opinion, combined and confederated with the said Holwell and induced him to execute to him said fraudulent deed of trust, with the purport and intent on the part of said defendant and said Holwell to hinder, defraud and delay the creditors of said Holwell out of their lawful actions,...