Dunivan v. Dunivan

• Decision Date: 12 June 1900
• Citation: Dunivan v. Dunivan, 57 S.W. 711, 157 Mo. 157 (Mo. 1900)
• Parties: DUNIVAN v. DUNIVAN et al.
• Court: Missouri Supreme Court

57 S.W. 711

157 Mo. 157

DUNIVAN v. DUNIVAN et al.

Supreme Court of Missouri, Division No. 1.

June 12, 1900.

FINDING OF FACT — REVIEW.

Where, in a suit to devest defendants of title to certain real estate on the ground of fraud, the evidence is conflicting, this court will not review, even in an equity case, the findings of fact, unless manifestly unjust.

Appeal from circuit court, Howell county; W. N. Evans, Judge.

Bill in equity by M. B. Dunivan against A. J. Dunivan and another to devest them of the title to 120 acres of land in Howell county. From a decree for defendants, the plaintiff appeals. Affirmed.

Bill in equity to devest title to 120 acres of land in Howell county, filed February 9, 1897. The plaintiff is the father of the defendant A. J. Dunivan, and in his petition he alleges that he owned the N. ½ and the S. W. ¼ of the S. E. ¼ of section 5, township 21, range ____, which he mortgaged on the 10th of December, 1891, to Elmer Stone to secure his note for $35; that soon afterwards he went temporarily to Arkansas, but before going he arranged with his said son and paid him to pay off and dischage the mortgage, and that his son informed him afterwards that he had done so, but that in fact his son wrongfully and fraudulently, with the design and purpose of cheating him, allowed and directed the land to be sold under the mortgage, on the 28th of February, 1892, and at such sale became the purchaser of the land himself, and received a deed therefor; that the defendant Milner, with due notice and knowledge of the fraudulent purposes and acts of his son, conspired with him in the purpose and design to cheat the plaintiff, and took a conveyance to the land from his son, and is now in possession of the land. The petition then asks that the title be devested out of defendant Milner, and vested in the plaintiff. The defendant Milner pleaded that she is the owner of the land; that she purchased it from A. J. Dunivan without notice of any right, title, or interest of the plaintiff, for a valuable consideration, and at its true value, and in good faith. The trial court found that A. J. Dunivan had agreed with his father to pay off the mortgage, but had fraudulently permitted the land to be sold under the mortgage, and became the purchaser thereof himself, and that he held the land in trust for the plaintiff, but that the defendant Milner purchased the land without notice of the fraud, and without knowledge of such facts as would charge her with notice of fraud, and therefore dismissed the bill. The plaintiff appealed.

A. H. Livingston, for appellant. Jas. Orchard, for respondents.

MARSHALL, J. (after stating the facts).

Appellant urges this court to review the testimony and reverse the finding of facts by the trial court as to the notice of and participation in the fraud by defendant Milner, and to enter a decree here in his favor. This court will examine the facts in equity cases, and render a judgment for the right party, notwithstanding the finding of the trial court. But proper, deference is always accorded the finding of the trial court, especially where the witnesses were present in that court and testified orally, and its conclusions and findings will not be lightly treated nor arbitrarily disturbed. It is only where the result is manifestly wrong that this court will set aside the finding of facts of the trial court in equity cases.

It is in the light of this rule that we approach the discussion of the facts in this case, and at the outset it is proper to say that there is an irreconcilable conflict in the testimony on both branches of the case; that is, as to the arrangement between the plaintiff and his son, and as to the fraud practiced by the son upon the father, and as to the notice to the defendant Milner of the fraudulent character of the son's deed to the land. Upon the evidence adduced there is abundant room for a court to find both issues for the plaintiff, or both for the defendants, or to find the first in favor of the plaintiff and the second in favor of the defendants, as the trial court did, or vice versa. This being true, it is not a proper case for this court to interfere with the judgment of the trial court, and we will not do so. But, simply to illustrate the wisdom of this rule, we will refer briefly to the testimony adduced by the respective parties in this case.

The plaintiff testifies that he owned the land in controversy, of which 50 or 60 acres were in cultivation, worth $1,500, on which there was a mortgage for $35; that he and his son, the defendant, owned a stallion together; that he took the stallion, and went South, under an agreement with his son that the son should cultivate the land, and pay off the mortgage, and he should sell the stallion; that he left on the place 43 head of hogs, a couple of sows with shoats, and a heifer, which he directed his son to sell if necessary to pay off the mortgage; that he could not get cash for the stallion, so he traded him for some land in Arkansas; that there was a lien on the land which the party he traded with agreed to pay off, but that the stallion got crippled, and the purchaser would not pay the lien on the land; that he sent a bale of cotton from Arkansas to pay a debt he owed in Missouri for which his son was surety, but that the son did not so apply it; that he owed quite a number of persons at the time he left Missouri, some of which debts his son was surety for and which the son paid; that he...