Kincaid v. Irvine

• Decision Date: 06 July 1897
• Citation: 41 S.W. 963,140 Mo. 615
• Parties: Kincaid et al., Appellants, v. Irvine
• Court: Missouri Supreme Court

41 S.W. 963

140 Mo. 615

Kincaid et al., Appellants, v. Irvine

Supreme Court of Missouri, Second Division

July 6, 1897

Appeal from Pike Circuit Court. -- Hon. Reuben F. Roy, Judge.

Affirmed.

Clark & Dempsey and Tapley & Fitzgerrell for appellants.

(1) The findings and judgment are against the law and evidence. Snyder v. Free, 114 Mo. 360; Lionberger v Baker, 88 Mo. 447. (2) The court excluded from the jury and disregarded the issue whether the conveyance was made to hinder, delay or defraud creditors. Nat. Tube Works Co v. Machine Co., 118 Mo. 365; Sexton v Anderson, 95 Mo. 373. (3) Part of the alleged consideration being fictitious renders the conveyance fraudulent. State ex rel. v. Hope, 102 Mo. 410; Seger's Sons v. Thomas Bros., 107 Mo. 635; Boland v. Ross, 120 Mo. 208. (4) The real consideration mentioned in said deed is not mere recital but is contractual, and the action of the circuit court in admitting in evidence the notes for $ 408 and the one for $ 125 had effect to add to, enlarge upon, vary or engraft upon the deed matters not mentioned therein and that had no connection therewith. We think these two pretended debts ought not to have been considered in any way. Halferty v. Scearce, 37 S.W. 113; Jackson v. Railroad, 54 Mo.App. 636; Morgan v. Porter, 103 Mo. 135; State ex rel. v. Hoshaw, 98 Mo. 358; Pearson v. Carson, 69 Mo. 550; Tracy v. The Union Iron Works, 104 Mo. 193; Brown v. Morgan, 56 Mo.App. 382; Squier v. Evans, 127 Mo. 514.

J. D. Hostetter for respondent.

(1) A debtor has a right to prefer creditors, and even though he is actuated by an intent to hinder and defraud other creditors, and such preferred creditor knows of such intent, and takes the property for the purpose of securing and protecting himself, the transfer is legitimate and valid, even though its effect is to hinder and delay others. Sexton v. Anderson, 95 Mo. 373; Dougherty v. Cooper, 77 Mo. 529; Frederick v. Allgaier, 88 Mo. 601; Shelley v. Boothe, 73 Mo. 74; Albert v. Besel, 88 Mo. 150; Freidman ex rel. v. Purcell, 33 S.W. 13; Goddard-Peck Grocer Co. v. McCune, 122 Mo. 431; Hollocher v. Hollocher, 62 Mo. 267; McConnell v. Brayner, 63 Mo. 464; Fontaine v. Savings Institution, 57 Mo. 561. (2) The consideration clause in a deed is always open to explanation, and it was competent to show what the actual consideration in this case was, whether all the items thereof had been set out in the deed or not. O'Day v. Conn, 131 Mo. 321; Squier v. Evans, 127 Mo. 514; Bank v. Aull, 80 Mo. 201; Baile v. Insurance Co., 73 Mo. 371. (3) A conveyance, in consideration that the grantee pay certain debts of the grantor, which amount to the full value of the land, will not be held fraudulent against other creditors whose debts are not thus included. Baker v. Harvey, 34 S.W. 853; Nichols v. Ellis, 98 Mo. 344. (4) In equity cases appellate courts always defer to the findings of the trial court, where the testimony upon which such findings are based is delivered orally in the trial court. Lins v. Lenhardt, 127 Mo. 271. (5) Objection was made to the reading of the $ 408 note in evidence on the ground that "it is irrelevant and incompetent." Which amounts to no objection, and no exceptions were saved to the action of the court in overruling said objection. To entitle a party to a review of the rulings of the trial court on admission of evidence, the specific ground of objection should have been stated therein, and an exception saved to an adverse ruling by the objector. State v. Miller, 93 Mo. 263; State v. Brannum, 95 Mo. 19; State v. Hope, 100 Mo. 347.

Gantt, P. J. Sherwood and Burgess, JJ., concur.

OPINION

Gantt, P. J.

This is a suit in equity to set aside a deed to eighty acres of land made by William R. Irvine to Jesse Irvine.

Plaintiffs are creditors of William R. Irvine who died soon after the execution of the said deed to his brother. They have had their claims, amounting in the aggregate to $ 361.15, duly probated against his estate.

The bill charges fraud in the said conveyance in this, to wit, that said pretended conveyance was made without consideration or at least for a nominal sum compared with the value of said land and was fraudulent and void against creditors, as defendant well knew at the time; that said Willian R. Irvine was rendered insolvent by said deed and left no property out of which plaintiffs' judgments could be made other than said land. Defendant for answer denied all charges of fraud and "further answering says it is true that William R. Irvine, a short time prior to his death, conveyed to him by deed the real estate mentioned and described in plaintiffs' petition, and that at the time said conveyance was made, the said William R. Irvine was indebted to one James D. Staley in the sum four hundred dollars and interest accrued thereon which indebtedness is secured by a deed of trust on said real estate and that he was also indebted to one W. B. Brashears in the sum of two hundred and ninety-one and 60-100 dollars and that he, the said defendant, was security on the note given by said William R. Irvine to said Brashears evidencing said indebtedness.

"And that said William R. Irvine was also at said time indebted to defendant in the sum of four hundred and eighty dollars, with interest thereon from October, 1892, up to the time of said conveyance, and that at said time the said William R. Irvine was also indebted to James Irvine, a brother of said William R. Irvine and this defendant, in the sum of one hundred and twenty-five dollars and accrued interest and being so indebted as stated above, and desirous of protecting his said brothers, James Irvine and this defendant, in the said debts due to each of them respectively and in the indebtedness for which defendant was security for said Wm. R. Irvine as stated above, he, the said William R. Irvine, in good faith made, executed and delivered said deed of conveyance which was in good faith accepted by this defendant.

"Defendant further answering says that the consideration for said deed was as follows:

"'First. He, the said defendant, assumed the payment of the Staley debt, secured by the deed of trust on real estate as above stated.

"'Second. He, the said defendant, assumed the payment of the debt due W. B. Brashears, on which indebtedness defendant was security for said Wm. R. as above stated.

"'Third. The indebtedness due from said Wm. R. to the defendant as stated above.

"'Fourth. The debt due from said Wm. R. to his brother James Irvine as stated above, which debt defendant agreed to pay and has since paid off and discharged.'

"Defendant says that he has also paid off and discharged the W. B. Brashears debt, and that his own debt against said William R. Irvine is paid off and canceled by said conveyance, and that he has paid a full, fair and reasonable price for said real estate, and that he procured said deed for the sole purpose of protecting himself and his said brother James Irvine in their bona fide debts due them from said Wm. R., and in the debt due from said Wm. R. to said W. B. Brashears on which defendant was his security, and that that was also the purpose of said Wm. R. in making said deed, and that there was no intention or design on the part of said Wm. R. or this defendant to defraud the creditors of said Wm. R. in making said conveyance, but that the same was in good faith made and accepted. And now having fully answered defendant asks to be discharged with his costs."

The reply was a general denial. The court submitted to a jury the issue as to what was the true amount of the consideration of the deed from William R. Irvine to Jesse Irvine and whether said consideration was fair and reasonable for such land. The jury by their verdict found that defendant agreed to pay $ 1,224.60 for the land and that said amount was a reasonable and fair consideration for the land. The court approved the finding of the jury and dismissed the bill.

The evidence tended to establish that the first and second items of the consideration for the deed pleaded in the answer were set out in full in the body of the deed, and there could be no question as to the bona fide character of these two items, as the record offered in evidence showed the Staley deed of trust on the eighty acre tract to have been given and recorded some months previous to secure the note for $ 400, which with accrued interest existed at the date of the conveyance under attack, and respondent assumed the payment of the same.

The second item of the consideration was supported by the testimony of W. B. Brashears, a capitalist and money lender of Vandalia, Missouri, who testified that Jesse Irvine was security on a note for Wm. R. Irvine for money loaned Wm. R Irvine by him (Brashears) which note Jesse Irvine afterward paid off...