Glasgow Milling Co. v. Burnes

• Decision Date: 24 May 1898
• Citation: 144 Mo. 192,45 S.W. 1074
• Parties: GLASGOW MILLING CO. v. BURNES et al.
• Court: Missouri Supreme Court

45 S.W. 1074

144 Mo. 192

GLASGOW MILLING CO. v. BURNES et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1898.

FRAUDULENT CONVEYANCES — EVIDENCE — REVIEW OF FINDINGS OF CHANCELLOR.

1. Grantor, who had, 10 days before, bought a large amount of merchandise from plaintiff, failed the day after the conveyance in question to his daughter was recorded. She testified that she had given her father $600, which her husband had turned over to her. They lived in grantor's house, and at some time prior to the date of the deed, which they "did not remember," agreed to purchase the property conveyed, applying the $600 as a first payment on the price, which "seemed to [her] like it was $1,100," and for payment of which no time was fixed. After that, at a time not fixed, she claimed to have paid $30; and "three or four weeks later," $60; and shortly before the date of the conveyance, $75, received as a Christmas present from her husband. The deed was made, and, she testified, was handed to her by her husband, but she did not know when, — he saying that he had paid the balance, — and was placed in the family "strong box," to which the grantor kept the key; he having been during all the transactions heavily in debt, and the conveyance having preceded the failure 2½ months. The property was worth $1,500, the expressed consideration was $1,100, and the source of the purchase money was unexplained. Held, that the deed was fraudulent.

2. Deference to a chancellor's findings of fact will only be given, on appeal, on balanced or conflicting testimony, and when they appear to be correct.

Robinson, J., dissenting.

Appeal from circuit court, Buchanan county; H. M. Ramey, Judge.

Action by the Glasgow Milling Company against Stephen J. Burnes and others. From a decree for defendants, plaintiff appealed. Reversed.

Wm. K. James, for appellant. S. S. Brown, for respondents.

MARSHALL, J.

This is a proceeding in equity to set aside a conveyance from Stephen J. Burnes and wife to Grace Sibbald, their daughter, of lots 10 and 11 of block 22 of Robidoux's addition to the city of St. Joseph, Mo., and to subject that property to the payment of a judgment for $1,558.08 in favor of the plaintiff, and against Stephen J. Burnes, on the ground that the conveyance was fraudulent, and intended to hinder, delay, cheat, and defraud his creditors. The evidence consists of the testimony of the grantee, Mrs. Sibbald, the grantor, Stephen J. Burnes, the notary who took the acknowledgment of the deed, and of Calvin Burns (no relation to the defendants), as to the financial dealings between the grantor and the National Bank of St. Joseph and the Ayr Lawn Company, and the judgment in favor of the plaintiff against Stephen J. Burnes. The plaintiff having called the grantor and grantee as witnesses on the question of fraud in the conveyance, there is no conflict of testimony in the case. The facts, briefly stated, are these: In 1891 Stephen J. Burnes was heavily indebted. He owned the property in dispute, which was worth $1,500. His son-in-law, the husband of Grace Sibbald, lived at his house, and worked for him. The daughter claimed that her husband gave her $600, which he received from some unexplained source when he became of age that year, and she put it in her father's hands for safe-keeping, intending to invest it in the stock of a building and loan association. Some time before December 24, 1891 (the exact or proximate time, the parties say, they "don't remember"), the daughter agreed with the father to buy the property here involved, for a price which the daughter could not remember, but which she left to her father to fix, and which, she says, "seems to me like it was $1,100, but I could not be positive." The $600 she had deposited with her father was applied as the first payment. No time was fixed for the payment of the balance of the purchase price, and no deed was made, or delivered, to the land. Afterwards, at a time not fixed, she paid her father $30 in cash, money which her husband had given her; and later, and "three or four weeks" after the unfixed time, she paid him $60 cash, acquired in the same way; and finally, about a week before Christmas, she took the $75 which her husband gave her as a Christmas present, and paid it to her father on account of the purchase. On the 24th of December, 1891, Stephen J. Burnes and wife made a deed to their daughter, and acknowledged it on December 28th. The daughter says that her husband handed her the deed, — she does not know when, — and told her that he had paid the balance of the purchase price. She put the deed in what appears to be the common ...