Leavitt v. Laforce

• Decision Date: 31 October 1879
• Citation: 71 Mo. 353
• Parties: LEAVITT v. LAFORCE et al., Appellants.
• Court: Missouri Supreme Court

71 Mo. 353

LEAVITT

v.LAFORCE et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Schuyler Circuit Court.--HON. ANDREW ELLISON, Judge.

AFFIRMED.

Hughes & Raley for appellant.

SHERWOOD, C. J.

The only question in this case is whether the defendants, Fellows and Winans, are bona fide purchasers or incumbrancers without notice. As to Fellows, according to his own testimony, it distinctly appears that there existed between LaForce and himself relations of a friendly and confidential character; that he had the utmost confidence in LaForce; was frequently in his office, made that his headquarters; kept his papers in LaForce's vault, and, when the mortgage was executed, left it there.

In a recent work on fraudulent conveyances the doctrine is announced that transactions between relatives or those occupying intimate and confidential relations, are subjected to a more jealous scrutiny than when occurring between mere strangers, and that in such instances the parties are held to fuller and stricter proof of the consideration and of the fairness of the transaction. The reason given for this rule, in substance is, that fraud is generally accompanied by a secret trust, and hence the selection of one in whom a secret confidence may be reposed, and as sentiments of affection commonly generate such confidence, relatives are usually selected as the repositories of the secret trust; but the same principle applies to all occupying confidential relations toward the party charged with the fraud. Any association, therefore, which generates confidence and its consequent intimacies, “though not a badge of fraud, strengthens the presumption that may arise from other circumstances and serves to elucidate, explain or give color to the transaction.” Bump, Fraud. Convey., 54 et seq. A doctrine even broader than this has been announced, for it has been held that where the grantor was father of the grantee, this relationship was a ground, taken in connection with other circumstances, from which the jury might infer that the son had notice of the trust to which the land was subject in the hands of the father, Coulter, J., remarking: “In regard to such transactions it is impossible to shut our eyes to the relation of the parties. John J. could have inquired any day from his father how he held the land, and the most natural thing in the world is to believe that he did.” Trefts v. King, 18 Pa. St. 157; Wade on Notice, § 25.

It is thus established at the very threshhold of this case, that if LaForce had in contemplation the perpetration of that with which the petition charges him, none would with greater likelihood have been selected as an assistant than his familiar, Fellows. Under such circumstances, if we are to be guided by the rule stated in the authority first cited, it would require somewhat more of exculpatory evidence in this, than in other cases where no such confidential relations existed. And if we follow the evident reason of the authority cited from Pennsylvania, the relations of confidence existing between LaForce and Fellows may well justify the belief--may well be regarded as evidence, when considered in connection with other circumstances, that the latter was cognizant of the trust to which the land was subject in the hands of the former. And the importance of the intimacy so existing between LaForce and Fellows becomes especially apparent when it is considered what opportunities were thus afforded the latter for becoming thoroughly conversant with the subject matter of the present litigation.

He knew when taking the mortgage on lands...