Kerstner v. Vorweg
| Decision Date | 11 October 1895 |
| Citation | 32 S.W. 298,130 Mo. 196 |
| Parties | Kerstner v. Vorweg et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Court of Common Pleas. -- Hon. Alex. Ross, Judge.
Affirmed.
J. B Dennis and F. E. Burrough for appellants.
The fact that plaintiff did not take the witness stand and testify to the bona fide character of the conveyance to him requires a reversal of the judgment of the trial court. Eck v. Hatcher, 58 Mo. 235; Bent v. Lewis, 88 Mo. 471; Baldwin v. Whitcomb, 71 Mo. 651; Maberry v. McClurg, 74 Mo. 574.
B. F Davis and W. H. Miller for respondent.
(1) A deed by a judgment debtor made before judgment to a bona fide purchaser but recorded after judgment and before execution sale takes precedence over a sheriff's deed. Sappington v. Oeschli, 49 Mo. 247; Black v Long, 60 Mo. 181; Fox v. Hall, 74 Mo. 315. (2) The judgment should not be reversed because plaintiff himself did not testify as a witness. Diel v. Railroad, 37 Mo.App. 454.
Plaintiff recovered judgment in ejectment, in the circuit court of Cape Girardeau county, for the possession of four town lots in the city of Cape Girardeau, conveyed to him by Christain Hirsch, Sr., in his lifetime for the consideration of $ 450, by a deed dated March 27, 1889, and recorded January 13, 1890. Defendants admitted possession and relied on an equitable defense, as to three of the lots, founded upon a sheriff's deed of date February 1, 1890, which deed was based on a judgment against Hirsch of date September 26, 1889. It was alleged in the answer that plaintiff was a son-in-law of said Hirsch; that the conveyance of said lots to plaintiff by Hirsch was fraudulent and was made to evade the enforcement of Hirsch's debts and that plaintiff took with knowledge and with a view of assisting Hirsch in his fraudulent purpose. Plaintiffs in their reply denied the charge of fraud. Neither party requiring a jury the cause was tried to the court and a finding and judgment was rendered for plaintiff.
It was admitted on the trial that Christian Hirsch was the common source of title. A warranty deed to all these lots from Louis Houck and wife to Hirsch, dated July 23, 1883, duly acknowledged and recorded, was read in evidence without objection; also a deed from Christian Hirsch and wife to Claus Kerstner, the plaintiff, for the same lots, of date March 27, 1889, acknowledged April 13, 1889, and recorded January 13, 1890. Rental value was shown and the possession of defendants.
The defendants offered evidence tending to prove that Mrs. Frank, the plaintiff in the execution against Hirsch, employed Charles Kempher to collect the debt upon which the judgment is founded, in February, 1889; that Hirsch said he would see Mrs. Frank; that Hirsch afterward said he thought he had paid her enough and would pay no more; that Vorweg, one of the defendants, bid in the lots, and sheriff's deed was made to himself and John A. Frank; that he took possession under that deed and retained it until this suit was commenced, employed Judge Wilson and the county clerk to search the records, and they reported there were no deeds or incumbrances on the lots. On the day of sale Mr. Cramer gave public notice that the lots belonged to Mr. Kerstner; that he heard the notice but thought the judgment would hold the land and so purchased it. He found the gates locked and a notice to trespassers signed by Kerstner. He broke the locks and took possession and tore down the signs. Hirsch died insolvent in 1890.
Weisenstein, a laborer, testified Hirsch told him, about a year before his death in February, 1890, the lots were his; that he cut the hay on the lots for Hirsch in June, 1889. He believed Hirsch hauled it to his stable.
Christian Hirsch, Jr., was called by defendants and testified that he was collector of revenue of the city. Previously had been marshal and collector. Plaintiff was his brother-in-law. Could not state his father's financial condition on March 29, 1889; knew nothing of his indebtedness to Mrs. Frank. His father was running a saloon and boarding house in Cape Girardeau in his own name six or more months before he died. No letters of administration were taken out on his estate. He had no real estate but these lots, for a year or two prior to his death. McGinness was in possession of the lots in 1891. Kerstner got some oats from there for witness.
P. H. Englemann, clerk of the common pleas court, testified that Christian Hirsch was running a saloon and boarding house in his own name when he made the deeds to the lots to plaintiff. Witness took the acknowledgment to this deed. There was no administration, but he did not know why there was none.
No instructions were given and none refused. The motion for new trial assigned three grounds, viz.: "The finding was against the evidence; the finding was against the law; the court erred in disregarding the fact that Claus Kerstner, plaintiff, and who alone knew of the actual bona fides of the transaction in dispute, was not produced by plaintiff to testify in the action."
I. This is an action at law. The fact that the answer contained an equitable defense did not change the character of the action and convert it into a case in equity. Carter v. Prior, 78 Mo. 222. It follows that the principles governing appeals in law cases as contradistinguished from appeals in equity must control in its disposition in this court.
No exceptions were taken and saved to the introduction or rejection of any testimony. No declarations of law were given or refused, and, under the assignments of error in the motion for new trial, the sole question for review is whether there was substantial testimony...
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