Nichols v. Ellis

• Decision Date: 10 June 1889
• Citation: 98 Mo. 344,11 S.W. 741
• Parties: NICHOLS et al. v. ELLIS et al.
• Court: Missouri Supreme Court

11 S.W. 741

98 Mo. 344

NICHOLS et al. v. ELLIS et al.

Supreme Court of Missouri.

June 10, 1889.

TRUSTS — EVIDENCE.

E. owed debts, and was insolvent. He conveyed his land to his two sons, for the consideration of $4,000, which was its fair value. He owed his brothers and another creditor more than that amount in the aggregate, but they agreed to deduct a portion, upon which the sons paid them $4,000 in full of their claims. Plaintiffs were also creditors of E., and they alleged the conveyance to the sons to have been made upon the agreement to pay all the debts owed by E. In support of this two witnesses testified that E. had made statements to that effect, and two witnesses testified to similar statements by the sons. E. and his sons denied making some of the statements, and explained others, and all the parties to the transaction agreed in saying that the sons never promised to pay any debts but the $4,000 mentioned. The whole indebtedness of E. was double the value of his land. Held, that the evidence did not support the finding that the sons agreed to pay all E.'s debts. BARCLAY, J., dissenting.

Appeal from circuit court, Boone county; G. H. BURCKHARTT, Judge.

Action by Thomas Nichols, executor, etc., of Sarah Johnson, deceased, and J. G. Babb against Elisha P. Ellis, William O. Ellis, and Peter H. Ellis, to establish a trust in plaintiffs' favor against a tract of land owned by the last-named two defendants. Judgment for plaintiffs, and defendants appeal.

A. M. Hough and Wellington Gordon, for appellants. S. Turner. W. J. & J. G. Babb and D. H. McIntyre, for respondents.

BLACK, J.

In January, 1881, Elisha P. Ellis, who was then insolvent, conveyed to his sons. Peter H. and William O. Ellis, 160 acres of land for the consideration of $4,000. In 1882 and 1883 Thomas Nichols, as executor of Sarah Johnson, and J. G. Babb recovered each a judgment against Elisha P. Ellis. The two judgments amounted to about $1,500 at the date of this suit, and the debts were incurred by Elisha P. Ellis prior to the date of his deed to his two sons. Subsequently Nichols and Babb commenced this suit in equity against Elisha P. Ellis and his sons, Peter H. and William O., to charge the land with a trust for the payment of their debts. They allege that, although the deed to the boys is absolute on its face, yet it was, by the parties thereto, intended and designed to be a conveyance to the sons for the purpose of paying off the indebtedness of Elisha P. Ellis, and it is then alleged that the boys have failed to execute the trust, and have converted the property to their own use. The circuit court found there was no trust created in favor of the plaintiffs. The further finding is that the boys, in consideration of the deed to them, assumed and undertook to pay off the debts of Elisha P. Ellis, and, on this finding, the court gave two judgments, one in favor of each plaintiff and against all three of the defendants. To reverse these judgments defendants perfected this appeal.

There are some facts disclosed on both sides, and about which there is no dispute. For the plaintiffs it is shown that Elisha P. Ellis was insolvent when he made the deed to the 160 acres of land to his two sons. He then owed the debts held by the plaintiffs, which were thereafter reduced to judgments. On the other hand it is shown beyond all doubt that Elisha P. Ellis was indebted to each of his three brothers and to a Mr. Christian. The debt to Christian was secured by a deed of trust on part of the land in suit, which had been advertised for sale under the deed of trust. In this state of affairs the three brothers of Elisha P. Ellis, Christian, and the two sons of Elisha all met at the house of the latter....