Orchard v. Collier

• Decision Date: 09 January 1903
• Citation: 71 S.W. 677,171 Mo. 390
• Parties: ORCHARD v. COLLIER.
• Court: Missouri Supreme Court

71 S.W. 677

171 Mo. 390

ORCHARD v. COLLIER.

Supreme Court of Missouri, Division No. 2.

January 9, 1903.

WITNESS—COMPETENCY OF HUSBAND—PROOF OF AGENCY — LOST INSTRUMENT — SUFFICIENCY OF PRELIMINARY PROOF—FRAUDULENT CONVEYANCE—DEED TO WIFE—SOURCE OF CONSIDERATION—SUFFICIENCY OF EVIDENCE.

1. A husband may prove his own agency for his wife, so as to make him a competent witness in her behalf in a suit against her.

2. Rev. St. 1889, § 8922, provides that a husband shall not be disqualified as a witness for his wife in a civil suit which is based on, grows out of, or is connected with any transaction had with or conducted by the husband as the wife's agent. A wife was made defendant in a suit to set aside a deed from her husband to her as in fraud of the husband's creditors, the defense being that the property was really that of the wife, and purchased with proceeds of property bought by the husband with the wife's money. Held, that it was error to permit the husband to testify as to his solvency both at the time of the sale of the first property and the purchase of that in suit, that he owed his wife some money for property of hers sold by him, that the wife inherited money from her father, and that he had used the wife's money in his business, such statements having no connection with the agency for his wife testified to by him.

3. Rev. St. 1889, § 2428, provides that a copy of the deed shall not be admissible unless it is shown on oath that the original is lost, or not within the power of the party wishing to use it. The husband of a grantee testified that he did not think he had the deed; that it might be among his papers; that his attorney advised him to get a certified copy; that he was positive he made a search for the deed; that he usually kept such papers in a trunk; that it seemed to him that when he got the certified copy he was certainly confident that he did not have the original; and that he certainly made some effort to find the deed, or he would not have got the copy. Held insufficient preliminary proof to warrant the introduction of a copy of the deed.

4. Evidence in a suit by a husband's creditor to set aside as fraudulent the husband's conveyance to his wife considered in connection with the presumption that property obtained by a wife during coverture is paid for by the husband, and held insufficient to show that the property conveyed was that of the wife, and obtained by the proceeds of her property, originally purchased by the husband with her money.

Error to circuit court, Shannon county; W. N. Evans, Judge.

Suit by James Orchard against Lucy T. Collier. Judgment for defendant, and plaintiff brings error. Reversed.

James Orchard, W. R. Shuck, and Ed. G. Saye, for plaintiff in error. Silver & Brown, for defendant in error.

BURGESS, J.

The petition in this case is in two counts,—one in equity to set aside certain deeds under which defendant claims title to the land in question upon the ground that they were made to defraud the creditors of the grantor therein named, and the other in ejectment for the possession of the land. The petition (leaving off the caption) is as follows: "Plaintiff states: That on the 15th day of March, 1894, one Agnes Collier recovered a judgment in the circuit court of Shannon county, Missouri, against W. F. Collier, for the sum of three hundred and eighty-eight dollars ($388), as her debt, together with her costs laid out and expended, upon which judgment execution issued from the clerk's office of said court in favor of the said Agnes Collier and against the said W. F. Collier, dated the 18th day of June, 1894, directed to the sheriff of the county of Shannon and state of Missouri, and the same was to said sheriff delivered on the 18th day of June, 1894; by virtue of which said execution the sheriff did, on the 18th day of June, 1894, levy upon and seize all the right, title, interest, and estate of the said W. F. Collier of, in, and to the following described real estate, situate in said Shannon county, to wit: East half of lot three (3) in block two (2) of the original town of Birch Tree, in Shannon county, Mo. That said sheriff, on the 12th day of September, 1894, and during the session of the circuit court at the September term, 1894, of said court, at the courthouse door in said county, having first given twenty (20) days' notice of the time, terms, and place of sale, and of the property to be sold, offered said real estate for sale at public auction for ready money, and did sell all the right, title, interest, and estate of the said W. F. Collier; and the plaintiff herein being the highest and best bidder for said real estate, at the price and sum of one hundred and twenty-five ($125.25) dollars and twenty-five cents, the same was stricken off and sold to the plaintiff. That said sheriff duly executed, acknowledged, and delivered to the plaintiff a sheriff's deed to the whole of said lands, and that the plaintiff is now the owner of all the right, title, interest, and estate of the said W. F. Collier in and to said real estate. Plaintiff states: That at the rendition of said judgment, and for a long time prior thereto, W. F. Coliier was wholly insolvent, and had no property, real or personal, except the property above described, upon which an execution could be levied, and that he was largely in debt on the date of the rendition of the judgment, and long prior thereto. That on the 13th day of February, 1894, W. F. Collier wickedly and fraudulently, and with the intent to cheat, hinder, and delay his creditors, and especially Agnes Collier, above described, made, executed, and delivered a general warranty deed pretending to convey the said east half of lot three (3) in block two (2) of the original town of Birch Tree, Missouri, to Arthur F. Collier, his son, in trust for Lucy T. Collier, wife of W. F. Collier. Said deed was duly recorded in the recorder's office of Shannon county, Missouri, in Deed Record Book 32, at page 156, on the 31st day of May, 1894. Which said deed was without consideration, and was in fraud of creditors, and especially as to Agnes Collier, the judgment creditor as above set out. Wherefore plaintiff prays the court for judgment setting aside said deed from W. F. Collier to Arthur F. Collier, trustee for Lucy T. Collier, dated 13th day of February, 1894, and recorded 31st day of May, 1894, in the office of the recorder of deeds of Shannon county, Mo., in Deed Record 32, at page 156, and that said deed be canceled, declared void, and for naught held. Plaintiff further states that Arthur F. Collier, on the 13th day of February, 1894, made, executed, and delivered a warranty deed to Lucy T. Collier, conveying said east half of lot three (3) in block two (2) of the original town of Birch Tree, Shannon county, Missouri, for her exclusive use and benefit, which said deed is duly recorded in Deed Record Book 32, at page 157, in the office of the recorder of deeds of Shannon county, Missouri, which said deed is without consideration, and is also fraudulent as to the creditors of W. F. Collier, and especially Agnes Collier, the judgment creditor herein described. Wherefore plaintiff prays the court for judgment declaring said deed fraudulent and void, and that the same be set aside, canceled, and for naught held. Plaintiff states that Arthur F. Collier is a son of W. F. Collier, and that Lucy T. Collier is the wife of W. F. Collier. Plaintiff, for another and further cause of action, states that on the 14th day of March, 1895, he was lawfully entitled to the possession of the following described real estate, to wit: The east half of lot three (3) in block two (2) of the original town of Birch Tree, in Shannon county, Missouri; and, being so entitled to the possession thereof, the defendant, on the 15th day of March, 1895, entered into and took possession of said premises, and unlawfully withholds the possession thereof from the plaintiff, to the plaintiff's damage in the sum of one hundred dollars ($100); that the monthly rents and profits of said property is ten dollars ($10). Wherefore plaintiff prays judgment for the possession of said property, and for damages in the sum of one hundred dollars ($100), and for monthly rents and profits at ten dollars ($10) per month, and for such other and further relief as the court may think proper." The answer is a general denial.

There is no disagreement about the facts, which are stated by plaintiff to be as follows: W. F. Collier, the husband of the defendant Lucy T. Collier was in business at Summerville, Mo., for several years. He moved from there to Thomasville and was in business there. All this time, and up to 1883 or 1884, he was doing business in his own name. Then he went to Thayer, Mo., and purchased a lot for $150, and had the lot deeded to the defendant herein. He claims that about eight or ten years before that his wife inherited about $200 from her father's...