Davis v. Kline

• Decision Date: 26 November 1888
• Citation: 96 Mo. 401,9 S.W. 724
• Parties: DAVIS v. KLINE et al.
• Court: Missouri Supreme Court

9 S.W. 724

96 Mo. 401

DAVIS v. KLINE et al.

Supreme Court of Missouri.

November 26, 1888.

1. ATTORNEY AND CLIENT — CONFIDENTIAL RELATIONS — PURCHASE OF CLIENT'S LAND.

An attorney who is employed to prepare a conveyance, and is consulted as to the purposes of it, and who afterwards purchases the land at a sale under execution against the grantor, cannot attack the conveyance as fraudulent.

2. SAME — EVIDENCE.

Where the attorney had the sheriff's deed made to a brother-in-law, who testifies that he gave the attorney general directions to buy land selling cheaply, but who gave no authority to purchase that particular tract, and the attorney testifies that he purchased for the brother-in-law, and that the latter paid the price, but the account of the alleged payment is evasive and confused, the attorney must be considered as the real purchaser.

3. EVIDENCE — DOCUMENTARY — DEATH OF WITNESS — BILL OF EXCEPTIONS.

Testimony given on a former trial by a witness since deceased may be proved by the bill of exceptions, the report of it therein being proved to be correct, or by the testimony of one who heard it; and, in laying a foundation for the admission of the bill of exceptions, testimony as to some of the details of the testimony of the deceased witness is not objectionable.

Appeal from circuit court, Pettis county; JOHN P. STROTHER, Judge.

Suit by W. F. Davis against John Kline and others to set aside a deed of trust. Judgment for defendants, and plaintiff appeals.

S. P. Sparks and M. A. Fyke, for appellant. John Montgomery, Jr., for respondents.

BLACK, J.

This is a suit in equity to set aside a deed of trust on 100 acres of land in Henry county. The court found the issues for defendants, and the plaintiff appealed. John Kline, who resided in Warrensburg, Johnson county, owned two or three parcels of real estate at that place, which were incumbered by mortgages to the amount of about $1,800. This property, and the 100 acres of land in Henry county, had an estimated value of about $5,000. He owed other debts to various persons, amounting to $3,000 or $4,000. Civil suits and criminal prosecutions were pending against him. He was insolvent. On the 8th of June, 1875, and while his affairs were in this condition, he made a note for $2,000 payable to Joseph Logsden, who was his father-in-law, and secured the same by a deed of trust on the Henry county land. On the same day he made another note to Logsden for $6,000, and secured the same on all of the Warrensburg real estate. Logsden says that these deeds of trust were made to save him harmless as the indorser for Kline to protect him as security on certain appeal-bonds, and to pay certain other debts owing by Kline. None of these agreements are set out in the deeds. Since the date of the deeds of trust, he has paid debts for Kline, including the mortgage debts, to the amount of $3,500. Other evidence tends to show that the primary object of the deeds of trust was to place the property out of the reach of creditors of Kline, and to save some of it for his family. W. P. Asbury prepared these deeds of trust as the employed attorney for Kline and Logsden, was their adviser in the matter, and in this way became acquainted with Kline's affairs. He brought two suits against Kline, and recovered judgments in February, 1876, — one in favor of Brockmire & Rankin for $176, and the other in favor of Assig & Harig for $206. Acting for these judgment creditors and as their attorney, he had the Henry county land sold on executions issued upon these judgments, and purchased the 100 acres at the price of $10, and had the deed made to this plaintiff. That sale was made on 21st April, 1876; and on the 16th June, 1876, he caused the Warrensburg property to be sold under the same judgments; but Logsden appeared, took up the bids, and paid Asbury the full amount of the judgments.

One of the defenses to this suit is that Asbury was the real purchaser of the 100 acres; that, having prepared the deeds of trust for Kline & Logsden as their attorney, he cannot maintain this suit. Asbury is dead, but his evidence on a former trial is in the record. The plaintiff, Davis, though charged with fraud in the answer, did not appear at either trial, but his deposition was taken by defendant Logsden. Their evidence shows that they were brothers...