Hume v. Wright
| Citation | 274 S.W. 741 |
| Decision Date | 01 July 1925 |
| Docket Number | 24683 |
| Parties | HUME v. WRIGHT et al |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied August 1, 1925.
Embry & Embry, of California, Mo., for appellants.
Roy L Kay, of California, Mo., for respondent.
Statement
This suit was instituted in the circuit court of Moniteau county by the plaintiff to enjoin the transfer of certain real estate by the defendant Nellie May Hays, conveyed to her by S. A. Wright, her codefendant, because of the alleged fraud practiced thereby upon the former's creditors. The trial was had before the court, a jury having been waived by the parties.
The findings and judgment of the court were for the plaintiff, and after moving unsuccessfully for a new trial, the defendants duly appealed the cause to this court. There is no question as to the pleadings, except that a general demurrer was filed thereto, stating that it did not state facts sufficient to constitute a cause of action, which was by the court overruled. The facts of the case conform to the petition, and if they are sufficient to sustain the judgment, then the petition was sufficient, otherwise the petition was and is bad.
To sustain the issues the plaintiff offered the following facts: That Earl L. Wright, and defendant, Nellie May Hays, are the son and daughter of defendant, S. A. Wright; that on the 17th day of January, 1919, Earl L. Wright, the son of defendant, S. A. Wright, borrowed of the Moniteau National Bank, of California, Mo., the sum of $ 6,000, and gave his note therefor signed by the defendant, S. A. Wright, the plaintiff, J. R. Hume, Earl L. Wright, and Jennie Wright, his wife, payable one year after the date thereof; that said note was renewed thereafter from time to time for periods of six months signed by the same parties, until on August 3, 1922, when the plaintiff, J. R. Hume, was compelled to pay same which at the time amounted to the sum of $ 5,604; that J. R. Hume is an aged man, being born in 1849 and a farmer owning at the time of the trial 280 acres of land; that he signed the note given to the Moniteau National Bank together with the other signers aforesaid for the sum of $ 6,000 and that he did not get any part of the money; that the plaintiff paid the note as above stated; that he had asked the defendant, S. A. Wright, on divers occasions to help pay said note and was told by him that 'he,' meaning the defendant, S. A. Wright, 'wasn't able to pay anything'; that at the time of the signing of the original note for said sum to the Moniteau National Bank the defendant, S. A. Wright, owned 200 acres of land 'out there,' meaning in Moniteau county, and that said defendant sold it for $ 20,000; that said defendant sold his land after signing of said note; that said defendant sold said farm before the plaintiff had any idea of a sale; that Earl L. Wright, defendant, Nellie May Hays, and defendant, S. A. Wright, are son, daughter, and father.
Testimony on direct examination of J. R. Hume: That defendant, S. A. Wright, sold said land high and that said defendant took back a deed of trust for the sum of $ 20,000; that said defendant pledged said note to secure a loan; that plaintiff is the father-in-law of Earl L. Wright; that defendant, S. A. Wright, borrowed the sum of $ 10,000 in August or September, 1921, of J. A. Cunningham, and gave as security therefor the collateral and mortgage note, that is the note in part payment for the land sold; that said mortgage note was sold on March 18, 1922, for the sum of $ 11,700; and that defendant, S. A. Wright, received from the proceeds of the sale of said note the sum of $ 844.20: that said note above referred to was the note given in part payment of the land sold by defendant, S. A. Wright, and was secured by deed of trust on said land; that the note that was sold was made payable to defendant, S. A. Wright; that the notice of sale of said mortgage note was published in Moniteau county. Mo., in the Moniteau County Herald, a newspaper, said notice being printed in the abstract; that on April 3, 1922, defendant, S. A. Wright, deeded by warranty to defendant Nellie May Hays, lots Nos. 4, 5, 6, and 7, in Meekin's addition to the city of California, Mo., for the purported consideration of $ 1, and said deed contains a United States revenue stamp of the denomination of 50 cents; that said deed was filed in the office of the recorder of Moniteau county on the 4th day of April, 1922, for record; that Earl L. Wright, son of defendant, S. A. Wright, executed a certain chattel mortgage to defendant, S. A. Wright, for the sum of $ 1,200 on certain property therein described which was filed for record on December 23, 1921; that on the 13th day of April, 1922, Earl L. Wright, the son of defendant, S. A. Wright, filed his petition in bankruptcy asking to be adjudged a bankrupt; that on the 20th day of April, 1922, the said Earl L. Wright was adjudged bankrupt; that defendant, S. A. Wright, owned 4 shares of the capital stock in the Gattermeir Milling Corporation of California, Mo., of the value of $ 200, and that said shares were standing in his name; that defendant, S. A. Rright, had been offering the lots for sale prior to the time they were deeded to defendant, Nellie May Hays, and after the date of said deed; that defendant, S. A. Wright, in his offer of the sale of said lots, of July 20, 1922, priced them as follows: Corner lot, $ 900; middle lot, $ 800; west lot, $ 650; that defendant, S. A. Wright, had an abstract of title to said lots, and that he bought them from the Moniteau National Bank, so it stood behind them; that said lots are the lots in Meekin's addition.
On cross-examination Mr. Pope stated that S. A. Wright had paid his debts to him; that J. W. Hunter was appointed trustee in the bankrupt case of Earl L. Wright in the United States court; that dividends in the sum of $ 383.57 were paid up on claims filed against the estate of Earl. L. Wright by defendant, S. A. Wright, the same being the first dividend paid on said claims; that said dividends were 10 per cent. on a claim of said S. A. Wright in the sum of $ 3,825.65; that a second dividend on said claim was paid in the sum of $ 826.25; that said amounts were paid to defendant, S. A. Wright; that the date of the first was June 1922, and of the second December 5, 1922.
The defendants to sustain the issues upon their part offered the following facts: That the lots described in plaintiff's petition, being the four lots in Meekin's addition to California, were worth possibly $ 1,000 or $ 1,200; that on forced sale, it was doubtful if they would bring over $ 800 or $ 900. On cross-examination this witness testified in substance that he had no direct knowledge upon which he, J. M. Gray, based his evidence of the value of said lots; that said lots could be sold for $ 700 or $ 800.
Lee Allee testified, and on cross-examination stated that S. A. Wright, defendant, paid $ 1,600 for the lots; that S. A. Wright on June 14, 1921, paid off a note to the Moniteau National Bank in the sum of $ 1,150, and that it was paid by a check drawn on the Bank of Fortuna for the sum of $ 1,200, and signed Mrs. Nell Hays, by Ben F. Hays; that said check was dated 6 -- 14 -- 1921; that Cavers lots, meaning the lots described in the petition were worth about $ 1,200. On cross-examination, L. F. Hert stated that the Moniteau National Bank sold said lots to defendant, S. A. Wright, for $ 1,500, in 1920; that the price of real estate at that time was steady, he testified.
On direct examination Ben F. Hays testified that he is the husband of Nellie May Hays; stated that he acted in conjunction with his wife, in the matter of making a loan to S. A. Wright, and in her absence acted for her; that he signed his wife's name to a check for $ 1,200, and his name under it; that said check was made payable to S. A. Wright; that his wife knew he was going to sign said check; that she was not right present at the time; that the check was made and delivered to S. A. Wright in California, Mo.; that Mr. Wright, the defendant, S. A. Wright, gave his wife, meaning the defendant, Nellie May Hays, his note for the sum of $ 1,150; that the note and check were both given on the same day; said note was made payable one day after date; that said note was paid by the lots; that at the time of payment the indebtedness amounted to $ 1,220; that said note had run only 10 months; that the deed to the lots was prepared at Latham; that no part of the note was paid in any other manner except the conveyance of the lots; that the lots were received in payment of the note; that she got this money from her first husband; that said money was deposited in the Bank of Barnett 5 -- 23 -- 1921; that it was transferred to the Bank of Fortuna in May 28, 1921; that S. A. Wright was given a check for $ 1,200 and he gave back $ 50 of this amount, and that this was done on the date of giving the check and note; that this $ 50 is the second item on the deposit slip of the Bank of Fortuna offered in evidence; that the check was given in the afternoon; that the note was turned to S. A. Wright, and he has had it since.
Nellie May Hays testified that she and her husband were at her father's one day and her father asked if she had money if she could spare it; that she arranged with her father to make the loan; that she did not think her father was at that time in good circumstances; that at the time her father wanted to borrow the money, difficulties had come up about the bankruptcy; that her father gave her a note; that he gave her some lots in California in payment of said note; deeded them to her; that the lots were all she had ever received for the note; and that they were in payment of the note; that she demanded payment of the...
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