Goldsby v. Johnson

• Decision Date: 31 October 1884
• Citation: 82 Mo. 602
• Parties: GOLDSBY v. JOHNSON et al., Appellants.
• Court: Missouri Supreme Court

82 Mo. 602

GOLDSBY

v.JOHNSON et al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Chariton Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

L. H. Waters and J. C. Crawley & Son for appellants.

The court erred in permitting Willis H. Johnson's deposition to be read against appellants while the witness was then present in the room. R. S. 1879, § 2157. The court erred in permitting a part of Willis H. Johnson's deposition to be read; plaintiff should have read the whole of it. Hill v. Sturgeon, 28 Mo. 323; Kritzer v. Smith, 21 Mo. 296. The decree of the court was not supported by the evidence. A court of equity, except in a case where the evidence is clear and conclusive, should not take from one man a large and valuable estate, as in this case, worth $4,000, and bestow it upon a stranger who purchased for $28. South v. Oliver, 40 Ill. 245; Elliott v. Stoddard, 98 Mass. 145; Shoulz v. Brown, 27 Pa. St. 123. When a suit to set aside a conveyance, as in this case, is brought by a subsequent creditor, fraud in fact must be clearly proven. As long as a creditor does not contemplate defrauding any one, he may dispose of his property as he sees fit. Payne v. Stanton, 59 Mo. 159; Pepper v. Carter, 11 Mo. 540; Salmon v. Barnett, 1 Am. Lead. Cases 49; Read v. Livingston, B. John. Ch. 501; 2 Story's Eq., §§ 355, 366; Vogler v. Montgomery, 54 Mo. 577. At the time the deed was made, Willis H. Johnson owed his father $2,700. After it was recorded the father paid the county mortgage for $440.75, Hill's debt of $600, Jackson's debt of $300, and the debt due Redman's estate of $190. He paid everything but the Munson debt, of which he heard for the first time after plaintiff had bought the land for $28. The court below should have offered him an opportunity to redeem.

S. P. Huston and A. W. Mullins for respondent.

Willis H. Johnson made no answer, and the fraud on his part, therefore, stands admitted. Shend v. Henley, 71 N. Y. 320. His failure to testify as a witness raises against him a strong presumption of fraud. Bump on Fraud. Con., (3 Ed.) 54; Baldwin v. Whitcomb, 71 Mo. 685; Henderson v. Henderson, 55 Mo. 559. A conveyance from son to father when the son is indebted, calls for strict proof of good faith and the payment of the purchase price. Glen v. Glen,17 Ia. 498; 94 U. S. 580; Stevens v. Dillman, 86 Ill. 233. The omission to place the deed of record or leaving it in the hands of the grantor, to be produced or suppressed, as exigencies may require, is a fraud. Bump on Fraud. Con., (3 Ed.); Coates v. Gulach, 44 Pa. 43; Hood v. Brown, 2 Ohio 267; Everleigh v. Penford, 2 Wood & Rob. 539; Brown v. McDonald, 1 Hill Ch. 297. After this pretended sale the vendor remained in possession of the land as W. O. Johnson himself says: “My son lived on and occupied and used the land after he conveyed it to me just as he had before.” This rendered the pretended sale fraudulent. Bump on Fraud. Con., (3 Ed.) 49; King v. Moon, 42 Mo. 551. During this time he mortgaged to Chariton county. McIntosh v. Bathune, 8 Ired. 139; Swift v. Lee, 65 Ill. 336. The motion for a new trial does not assign error in admitting or rejecting evidence; hence, that could not be assigned here. But even if it could the action of the lower court is clearly sustainable on authority. Morris v. Brunswick, 73 Mo. 256.

NORTON, J.

The petition in this case was filed in September, 1880, and charges in substance that on the 27th day of October, 1877, defendant, Willis Johnson, became indebted to Anna Munson, administratrix of the estate of Wm. Munson, deceased, in the sum of $302.90; that Willis was then occupying the land and credit given to him on account of such apparent ownership; that, after the creation of this debt on the 10th day of January, 1878, a deed from Willis H. Johnson to his father, Wm. O. Johnson, purporting to convey this land, was filed for record, which deed was dated March 6th, 1876; that it was secretly and collusively made by an arrangement between father and son to defraud existing and future oreditors of said Willis H. Johnson; that after the pretended making of the deed from son to father, the former mortgaged the land to Chariton county, representing it to be his own with the knowledge of the father. This mortgage is dated March 30th, 1876. The petition then alleges that suit was brought on the Munson note ; an attachment issued in aid of it upon the ground that defendant, Willis H. Johnson, had fraudulently conveyed and assigned his property and effects, and had concealed, removed and disposed of his property and effects so as to hinder and delay his creditors; that personal service was had and judgment rendered thereon in the name of William Bitter, administrator de bonis non; the land levied upon and sold as the property of Willis H. Johnson, and purchased by plaintiff and deed made to him. The prayer of the petition is, that said deed from Willis Johnson to William O. Johnson be set aside.

Defendant, Willis Johnson, did not answer, but made default. William O. Johnson filed his answer denying the material allegations of the petition.

Upon the trial of the cause judgment was rendered by the court for plaintiff in accordance with the prayer of his petition, from which the defendant has appealed, and assigns as reason for the reversal of the judgment that the finding is against the evidence.

As to defendant, Willis H. Johnson, the fraudulent purpose for which the deed in controversy from him to his father was made, stands confessed, and if the father, William O. Johnson, had knowledge of this purpose, and accepted the deed with such knowledge, it is void as to creditors, even though he may have paid a consideration for the property conveyed; and the fact that Willis H. Johnson, the grantor and son, was present in court, when the cause was tried, as the record before us shows, and was not called by him to testify, under the ruling of this court in the case of Baldwin v. Whitcomb, 71 Mo. 651, raises a presumption in favor of the charge of fraud. The presumption thus raised is abundantly fortified by the evidence in the case, and passes from a mere presumption to a fact proved.

The evidence shows that, although the controverted deed from the son to the father was dated and acknowledged on the 6th of March, 1876, that it was not filed for record till the 10th of January, 1878; that in the meantime the son, according to the evidence of the father, lived on and occupied the land as he had before, and according to the evidence of Mr. Doxey, defendant, William O. Johnson, told him in May, 1877, more than a year after the date of the deed, that the land belonged to Willis, his son. In addition to this, the evidence shows that the debt which culminated in the judgment under which the land was sold to plaintiff, was contracted in October, 1877, with Anna Munson, administratrix, and concerning which Mr. Slyster testified as follows: “I live adjoining this land, have lived there for years; was acting as the agent of Mrs. Munson at the time Willis Johnson bought the stock. Willis always claimed the land and used it as his own. I would not have delivered the property if I had not believed he owned the farm; his father was there frequently in 1878, spoke of the farm as Willis' farm; told me the farm was his; had a conversation with Wm. O. Johnson one year ago, in which he said he did not get the deed from his son till 1878.”

McCalvin testified: “Was at Willis' frequently while he lived on the land; he always claimed the land; he built a large barn on it and a new dwelling house in 1877 and 1878. I saw his father then...