Lewis v. Whitten
| Decision Date | 28 November 1892 |
| Parties | Lewis v. Whitten et al., Plaintiffs in Error |
| Court | Missouri Supreme Court |
Error to St. Clair Circuit Court. -- Hon. D. P. Stratton, Judge.
Affirmed.
Neal & Duckworth and D. H. McIntyre for plaintiffs in error.
(1) An alias execution issued without a return of the original execution is void. The sheriff's deed, in order to have a prima facie character, should recite the return of the original execution unsatisfied, that the authority for the alias excution might be shown. Dowsman v. Potter, 1 Mo. 518; Bailey v. Gentry, 1 Mo. 164; 7 American & English Encyclopedia of Law, pp. 122, 123; Freeman on Executions [Original Ed.] sec. 49; Revised Statutes, sec 2392. (2) The land was sold as a whole when it should have been sold in its smallest legal subdivisions. Revised Statutes, sec. 2368. (3) The partial record of the proceedings of the State v. Robert Whitten was inadmissible. The whole record should have been offered and the court should have excluded the partial record. 1 Greenleaf on Evidence [13 Ed.] sec. 201, and note. (4) When a transaction is as compatible with honesty as with dishonesty, it will be presumed to be honest. Chapman v. McIlwrath, 77 Mo 38; Henderson v. Henderson, 55 Mo. 534; Rumbolds v. Parr, 51 Mo. 592; Funkhouser v. Lay, 78 Mo 458; Dallam v. Renshaw, 26 Mo. 533. (5) A fraud that will vitiate a sale must be mutual. Gordon v. Ritenour, 87 Mo. 54; Lewis v. Hopping, 8 P. 73, and note to case. (6) In order to defeat the title of a purchaser from one who conveys land with a fraudulent intent, the vendee must have notice of the intent, or participate in the fraud. Henderson v. Henderson, 55 Mo. 534. There must be tangible proof that the grantee participated; mere suspicion is not sufficient. Hansmann v. Hope, 20 Mo.App. 193. (7) Actual fraud must be proved -- not conjectured. Facts which give rise only to suspicion of its existence do not establish fraud. Priest v. Way, 87 Mo. 16. (8) The possession of the farm by Whitten after the sale of the land by him to Elliott is not presumptive evidence of fraud. Stewart to use v. Thomas, Adm'r, 35 Mo. 202; Gordon v. Ritenour, 87 Mo. 54. (9) Where the vendor of property remains in possession of property as the lessee of the vendee his declarations are inadmissible against the vendee. Gordon v. Ritenour, 87 Mo. 54. (10) Declarations and admissions of Whitten were inadmissible to impeach his conveyance to Elliott. Hambright v. Brockman, 59 Mo. 52; Meredith v. Wilkinson, 31 Mo.App. 1; Albert v. Besel, 88 Mo. 150; Buckman v. Montgomery, 80 Am. Dec. 229. (11) Had a conspiracy been established between Whitten and Elliott to defraud the creditors of Whitten, the declarations of Whitten after the conveyance would have been inadmissible against Elliott. State v. McGraw, 87 Mo. 161; State v. Fredericks, 85 Mo. 145; Laytham v. Agnew, 70 Mo. 48. (12) Admissions made by a grantor in a deed after the sale are inadmissible in evidence to affect the title of the grantee, unless he assented to them, or they were made in his presence without objection. Gutzweiler, Adm'r, v. Lackman, 39 Mo. 91; Stewart to use v. Thomas, Adm'r, 35 Mo. 202; Worley ex rel. v. Watson, 22 Mo.App. 546. (13) The duty of R. E. Lewis, plaintiff, as prosecuting attorney of Henry county, was to prosecute the forfeited recognizance to judgment and enforce and collect said judgment for the benefit of the state and the school fund, and, if there was any cause of action against S.D. Whitten and James Elliott, it should have been prosecuted in the name of the state for the use of the school fund. Lewis therefore was not the proper party. Acts, 1881, p. 37. (14) Parties: A trustee of an express trust is created by writing; all who may be held to be trustees cannot sue in their own names. Bliss on Code Pleading [1 Ed.] 54; Story on Equity Pleading [Redfield's Ed.] secs. 207, 209.
John H. Lucas and Calvird & Lewis for defendant in error.
(1) The sheriff's deed contains all necessary recitals. Revised Statutes, 1879, sec. 2392; Wilhite v. Wilhite, 53 Mo. 71. The alias execution showed the return of the original execution unsatisfied. (2) The land was sold in the smallest legal subdivisions, as appears from the return of the sheriff on the execution. If it had been sold as a whole, such fact can only be taken advantage of by parties injured by motion or by bill in equity. Fine v. Schools, 30 Mo. 166; Kelley v. Hurt, 61 Mo. 463; Bouldin v. Ewart, 63 Mo. 330. (3) The record of the proceedings of the State of Missouri v. Robtert D. Whitten and Stokley D. Whitten, upon the forfeited recognizance in Henry county circuit court, was offered in evidence by defendant in error and admitted. (4) Fraud, in equity, can be presumed from facts and circumstances. King v. Moon, 42 Mo. 551; 1 Story on Equity [12 Ed.] sec. 190; 19 N.W. 402; 13 N.W. 116; Gallatin v. Cunningham, 8 Cow. 361. (5) Where the vendor continues in possession, his acts and declarations are competent as characterizing the possession. Mills v. Thompson, 72 Mo. 367; Railroad v. Clark, 68 Mo. 374; Darrett v. Donnelly, 38 Mo. 492; Stewart v. Thomas, 35 Mo. 202; Gordon v. Ritenour, 87 Mo. 54, and cases cited; 9 Cent. Law Jour. 235; Abbott on Trial Evidence, 740. (6) The declarations of Whitten, while in possession of the farm, were admissible against Elliott as characterizing the possession, and against Whitten for all purposes. (7) No objection on that ground is made by Elliott, and that point is, therefore, waived as to him. Pike v. Martindale, 91 Mo. 268; Kellogg v. Malin, 62 Mo. 429; Butler v. Lawson, 72 Mo. 247; Revised Statutes, 1879, sec. 3519; Turner v. Lords, 92 Mo. 113; Church v. Kellar, 39 Mo.App. 441. The testimony offered by plaintiffs in error to show that defendant in error was the trustee for the state of Missouri, or Henry county, which testimony was excluded by the court, was immaterial and irrelevant. For, admitting such to be the fact, defendant in error would thereby stand in the position of a trustee of an express trust (see Revised Statutes, 1879, sec. 3463), and would, therefore, be entitled to sue alone in his name. Wright v. Tinsley, 30 Mo. 389; Buddington v. Mastbrook, 17 Mo.App. 577, and cases cited; Snider v. Express Co., 77 Mo. 523; Miles v. Davis, 19 Mo. 414; Harney v. Dutcher, 15 Mo. 93; Phillips v. Laclede Co., 76 Mo. 69.
This is an action brought in the circuit court of St. Clair county by Robert E. Lewis, plaintiff, against Stokley D. Whitten and James Elliott, defendants, to set aside a deed executed by the said Whitten and wife, bearing date the fourteenth day of June, 1881, conveying a tract of land in said county to the said Elliott for the expressed consideration of $ 3,600, on the ground that said deed was made without consideration, and with the intent upon the part of said Whitten to hinder, delay and defraud his creditors, in which fraudulent intent the said Elliott participated.
The trial court so found, set aside and annulled the deed, and the case is brought here by the defendants on writ of error.
It appears from the evidence that, prior to the April term, 1881, of the circuit court of Henry county, a son of the said Whitten had been arrested for grand larceny in said county, which adjoins St. Clair on the north, and Whitten had entered into a recognizance to the state of Missouri in the sum of $ 1,000 for the appearance of his son at the April term aforesaid, of the Henry county circuit court to answer such charge; that at said term the son was indicted for grand larceny, but failing to appear the recognizance was forfeited, and on the fourteenth day of June following the deed in question was executed. The tract conveyed contains about three hundred and fifteen acres of land, worth at that time between $ 4,000 and $ 5,000, situate in the northern part of St. Clair county, near the Henry county line; it was farming land except forty acres in timber. It had three houses on it, an ordinary frame dwelling, one and a half stories, a cabin and a small box house. At the time of the conveyance Whitten was living in the cabin, the main house being in the possession of a tenant to whom he had rented the place for a term ending March 1, 1882. Whitten was then aged about sixty years, somewhat infirm in health, with weak eyes, and not capable of doing much farm work. His family consisted of his wife, two boys who rendered him little assistance, and had become notorious as thieves, and some younger children. Besides his farming implements and household furniture, he had a wagon, two or three horses, several cows and calves and some hogs. It also appears that he was an applicant for a pension from the government, which he afterwards received, but when or how much does not appear; that there was a mortgage on the place amounting to $ 400, which was afterwards, with the interest, paid by Elliott, $ 40 of which seems to have been with money deposited by Whitten. But besides this mortgage debt the recognizance obligation, and a note of $ 100 to a firm of lawyers in Henry county retained for the defense of his son in the larceny case, it does not appear that he was otherwise indebted.
Defendant Elliott at that time was a farmer and trader in easy circumstances, living a few miles from Osceola, the county seat of St. Clair, and about twenty-two or twenty-three miles from the home of Whitten. He had formerly lived near Whitten's farm and been his neighbor, and they had been intimate friends and "chums" for many years when this conveyance was made.
A few days before it was executed Whitten came to the office of C A. Calvird, in Clinton in Henry county, a member of the firm, who had been retained to defend his son on the criminal charge, had a talk with him about the...
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