Fink v. McCue

• Decision Date: 05 March 1907
• Citation: 100 S.W. 549,123 Mo. App. 313
• Parties: FINK et al. v. McCUE et al.
• Court: Missouri Court of Appeals

100 S.W. 549

123 Mo. App. 313

FINK et al. v. McCUE et al.

St. Louis Court of Appeals. Missouri.

March 5, 1907.

1. APPEAL—GRANTING NEW TRIAL—REVIEW.

The appellate court, reviewing the ruling of the trial court granting a motion for a new trial without giving any reason therefor, must consider all the grounds assigned in the motion, and, if any one is sufficient, the ruling will be sustained.

2. HUSBAND AND WIFE—RIGHTS OF HUSBAND —SERVICES OF HUSBAND.

A husband, who for the benefit of his wife and family does all the work in sowing and harvesting a crop on land leased by the wife, acquires no interest in the crop which can be reached by his creditors.

3. FRAUDULENT CONVEYANCES—ISSUES—EVIDENCE—INSTRUCTIONS.

Where, on the issue whether a crop raised by a debtor was his property or belonged to his wife, as lessee of the land, there was evidence that the lease to the wife was executed in furtherance of a scheme to make it appear that she was the owner of the crop for the purpose of protecting it from levy and sale to satisfy a judgment against the husband, the refusal to give a requested instruction submitting the issue was erroneous.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Philip Fink and another against John W. McCue and another. From an order granting a new trial after verdict for plaintiffs, they appeal. Affirmed.

J. D. Hostetter and Pearson & Pearson, for appellants. F. J. Duvall and E. C. Mayor, for respondents.

BLAND, P. J.

The action is in replevin to recover possession of 71 sacks of wheat, seized and levied upon by defendant McCue, as constable, to satisfy an execution issued to him by a justice of the peace, on a judgment in favor of one Henry Lee and against J. D. South, in the sum of $100, for services rendered as house servant and common laborer. The petition is in the usual form. The answer is a general denial and an affirmative allegation that J. D. South was the owner of the wheat, and justified the seizure and retention of the wheat by virtue of the execution against South and in favor of Lee. As a further defense, the answer alleged "that the plaintiffs and the said John D. South contrived and schemed together to cover up his property and prevent the collection of said judgment and debt on said execution; and charge, further, that John D. South's acts and those of the plaintiffs are a sham and a scheme and a fraud in law and in fact, and their claim to said property is a pretended claim, trumped up between plaintiffs and John D. South to defeat the said execution." J. D. South is the husband of plaintiff Sarah South, who is the daughter of plaintiff Fink. Fink owned a farm in Pike county, and J. D. South and family resided with him on said farm. Five years prior to August 1, 1904, J. D. South had rented the land of his father-in-law, Fink, from year to year. It appears from plaintiff's evidence that Fink had some misunderstanding with his son-in-law, South, and refused to rent him land in 1904, but, instead, rented to his daughter, Sarah South, by a written lease prepared by J. D. South, dated August 1, 1904, by the terms of which Fink rented to his daughter certain described lands for a term of 12 months, specifically described portions of which land the lessee agreed to sow in wheat. Fink agreed to furnish the seed wheat, pay one-half the expenses of harvesting and threshing, and take as rent one-half the net proceeds of the wheat, which was to be sold to a nearby mill. The yield was 500 bushels, and the 71 sacks levied upon was a part of the crop. Defendant's evidence shows that J. D. South owned a team of horses and some farming implements, all of which, on August 15, 1904, he mortgaged to Laura and James Burnett, his sister and brother-in-law, to secure a debt of $800. In the latter part of August, defendant McCue, as constable, levied upon the team to satisfy the Lee judgment, but, on learning of the mortgage, gave the team up and returned it to South. When the levy was made, Fink went to his neighbor, William Jewett, who testified as follows: "Mr. Fink came over and said they wanted my brother and I to take the land, providing Mr. South didn't want the land, didn't take it. He said the officers had the horses, and he wanted us to put in the wheat. We went over then and went to plowing. I think Mr. South had been plowing up to that time. My brother and I plowed about a day. I think it was about 9 o'clock I plowed. I think they got their horses back the same day. John D. South then plowed the land from that time on...