First Nat. Bank v. Renick

• Decision Date: 13 November 1912
• Citation: 246 Mo. 490,151 S.W. 421
• Parties: FIRST NAT. BANK OF PLATTSBURG v. RENICK et al.
• Court: Missouri Supreme Court

151 S.W. 421

246 Mo. 490

FIRST NAT. BANK OF PLATTSBURG v. RENICK et al.

Supreme Court of Missouri, Division No. 2.

November 13, 1912.

Rehearing Denied December 10, 1912.

1. BILLS AND NOTES (§ 518) — CONSIDERATION — EVIDENCE.

Evidence, in a suit to set aside a deed of trust executed in 1898 to the grantor's children to secure notes to the amount of $30,000, based upon a note for $6.000 executed in 1874 by grantor to his then wife, held to sustain a finding that the $6,000 note was without consideration.

2. FRAUDULENT CONVEYANCES (§ 104) — TRANSACTIONS — CREDITORS.

Where the rights of creditors are involved, financial transactions between husband and wife are looked upon with suspicion.

3. APPEAL AND ERROR (§ 1096) — REVIEW — IN SUBSEQUENT APPEAL — EVIDENCE.

In examining the trial court's conclusions on the facts in an action to set aside a deed of trust, the reviewing court could consider the lapse of time, the discrepancy between the present testimony and that given on a former trial, and the fact that the changes made in the testimony conformed to the needs of the parties introducing the witnesses, as determined by the former decision.

Appeal from Circuit Court, Lafayette County; Sam Davis, Judge.

Suit by the First National Bank of Plattsburg against Bessie M. Renick and others. From judgment for plaintiff, defendants appeal. Affirmed.

John A. Cross, of Lathrop, and J. W. Boyd, of St. Joseph, for appellants. W. S. Herdon, of Plattsburg, and Culver, Phillip & Spencer, all of St. Joseph, for respondent.

BLAIR, C.

This is a suit to set aside a deed of trust executed June 25, 1898, by Emanuel S. Fry to his three children to secure notes amounting, with interest, to about $30,000. On the same day the deed of trust was executed, Fry conveyed all his other property, and the present plaintiff instituted an action against him, attaching the 220 acres of land covered by the deed now assailed. In that action there was judgment for defendant on the plea in abatement and for plaintiff on the merits. On plaintiff's appeal the judgment on the plea in abatement was reversed and the cause remanded, and on retrial the attachment was sustained. The land now involved was bought by plaintiff at execution sale under the judgment. The opinion of this court in that case (168 Mo. 492, 68 S. W. 348) states the facts as then proved, and it was there held the trial court might well have directed a verdict sustaining the attachment. On the trial of this case the principal evidence for defendants was given by the same witnesses who testified for defendant Fry in the attachment proceedings.

The action of this court in reversing the judgment and remanding the former case was in part predicated upon the conclusion that there was no evidence in the record (168 Mo. loc. cit. 514, 68 S. W. 348) tending to show there was any consideration for the notes secured by the deed of trust now sought to be set aside. The record disclosed that the notes mentioned depended for their consideration upon a note for $6,000 executed in 1874 by Emanuel S. Fry to his then wife for one-half the sale price of Virginia lands given the wife by her father. In that case it appeared the note was executed without any previous agreement respecting it, after the husband had reduced the proceeds of the lands to his possession. The evidence in the former case chiefly consisted of depositions, and these were offered in the present case in proof of the character of the testimony of the principal witnesses in the former case; they being also the principal witnesses in this case. As to what the character of that testimony was in the attachment proceedings, reference, for the sake of brevity, is made to the decision of this court in the attachment proceedings. In that case, on retrial, the circuit court directed a verdict sustaining the attachment, and no appeal seems to have been taken.

It also appeared in evidence in the present case that in other cases instituted by other creditors of Fry the depositions of some of the witnesses had been taken, and that in no instance, prior to the institution of the present suit, had the testimony as to the facts indicating a want of consideration for the original $6,000 differed materially from that in the attachment proceedings first mentioned.

The evidence now discloses that some of the witnesses have a recollection of the circumstances under which the $6,000 note was executed and delivered entirely different from that they had when their testimony was previously taken. Under these circumstances the trial court refused to believe them and found for plaintiff, and defendants appealed.

In First National Bank of Plattsburg v. Fry, 168 Mo. loc. cit. 513, 68 S. W. 354, it was said of the very transaction involved in this case that, "when the rights of creditors are involved, transactions like this between husband and wife are to be scrutinized with the most jealous care." It was further pointed out that the presumption was that the deed from Deyerle and wife to Mrs. Fry, and that from Fry and wife to Chapman, were acknowledged February 28, 1874, and that the presumption was these deeds were delivered on the day they were acknowledged, and therefore two days before the execution of the note from Emanuel S. Fry to his wife, which bore date March 2, 1874. Since defendants' position is that the trial court was wrong in finding from the evidence that the $6,000 note was without consideration, it becomes necessary to examine the evidence in this record.

That the character of the evidence before the trial court may be understood, excerpts therefrom may prove enlightening. J. D. Deyerle, one of defendants' principal witnesses, had testified in 1898 that the deed to Fry and wife from Deyerle, and the deed from Fry and wife to Chapman, were both acknowledged on the same day, and delivered on the day they were acknowledged. In 1907 he testified that the deeds were not delivered until two or three days after they were acknowledged. During his cross-examination the following occurred: "Q. You say to-day, nine years later, that you were mistaken when you made these answers to these questions, and you also say that you can give no reason for saying why your memory to-day is better than it was nine years ago; is that right? A. Only by my recollection, sir. Q. Now, the fact in the matter was this, Mr. Deyerle: You gave your testimony in 1898, and you know this case was tried after that, don't you? A. Yes, sir; I heard it. Q. You know from Mr. Fry that it was tried? A. Yes, sir. Q. Mr. Fry told you that the case went to the Supreme Court of Missouri, didn't he? A. Yes, sir. Q. And he told you that the Supreme Court of Missouri had reversed the decision, didn't he? A. Yes, sir. Q. And Mr. Fry told you that the Supreme Court, in reversing that decision, had held that there was no consideration for the note that was given by him to his wife, the $6,000 note referred to in your testimony, unless it could be shown that an agreement existed between him and his wife, before the note was executed, that the note was to be given in consideration of her deeding this land to Mr. Chapman, joining in the deed to Mr. Chapman. He told you that, didn't he, in substance? A. I don't exactly know the circumstances; something to that effect. Q. And he told you it was necessary to get evidence to that end, didn't he? (Objected to by counsel for defendants, because the defendants are not bound by any conversation he had with E. S. Fry.) Q. He told you that it was necessary to get evidence to that effect to show that this agreement existed between him and his wife before the deeds were executed, didn't he, in substance, sir? A. No, sir. Q. He didn't tell you that? A. No, sir. Q. Then they took your deposition over, didn't they? A. Next time they came. Q. That is the time that Mr. Fry came here and told you about what the Supreme Court had decided? A. Yes, sir. Q. When it became necessary to take your deposition over the second time, the Supreme Court had decided the case, hadn't it, sir? (Objected to as hearsay testimony.) A. I don't know. Q. You know it from what Mr. Fry told you? A. That they had reversed the case back? Q. And he told you the facts you said he told you? A. Yes, sir. Q. And then your deposition was taken the second time? A. Yes, sir. Q. And then when they took your deposition over the second time you changed your testimony from what it had been on the first trial? A. Yes, sir."

With reference to the same matter, the delivery of the deeds, etc., the same witness further testified: "Q. Didn't you say to me, on cross-examination, that Mr. Fry had explained to you that the Supreme Court of Missouri had reversed the judgment in the case of the Bank v. Fry, and explained to you why they had reversed it? Did you not make that admission yourself on your cross-examination? A. Yes, sir; I believe I did. Q. That is true, isn't it? A. Yes, sir. Q. Now, I say that it was after the time that Mr. Fry had explained to you the decision that you first made the statement that the two deeds we have been talking about...