Poston v. Balch

• Decision Date: 31 October 1878
• Parties: POSTON, Appellant, v. BALCH.
• Court: Missouri Supreme Court

69 Mo. 115

POSTON, Appellant,

v.BALCH.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Knox Circuit Court.--HON. JOHN C. ANDERSON, Judge.Harrington & Cover and B. G. Barrow for appellant.

Courts of equity will protect the weak minded and unsuspecting from the frauds of those who are their superior and would dupe them into a false belief, and on the question of fraud or imposition, weakness of mind is an element of great importance. Willard's Eq., 202, 203, 204; Cadwallader v. West, 48 Mo. 483; Freeland v. Eldridge, 19 Mo. 325. The defendant relies upon the principle that equity will not grant relief to persons who are parties to agreements against public policy, or where they are participes criminis. This rule, we contend, cannot be applied in this case. Story's Eq., (8 Ed.) vol. 1, § 298. It is never enforced where the defendant takes advantage of plaintiff's condition or situation. The parties must be equally guilty. Vide note 1 to section above. To enforce the rule the parties must stand in pari delicto, and if there are different degrees of guilt caused by oppression, imposition, undue influence or inequality of condition, the rule does not apply. Gowan's Admr. v. Gowan, 30 Mo. 472; 1 Story's Eq., §§ 300, 300 a and b, 307, 308; Barnes v. Brown, 32 Mich. 146; Ford v. Harrington, 16 N. Y. 285; Bump. on Fraud. Convey., 447. All of the cases where the courts have refused to give relief are where both parties have an equal knowledge, while in this case they urge the application of the rule, although the defendant falsely represented what plaintiff's wife said, which induced plaintiff to follow the advice of defendant. Transactions to come under the law of particeps criminis must not only be intended to hinder and delay creditors, but have the effect to do so, and unless a party has creditors or parties to whom he is liable and who are intended to be defrauded, is not within the rule. Wag. Stat., pp. 279, 280, 281.

R. B. Dysart and E. J. Newton for respondent.

There is no equity in plaintiff's bill. It shows, upon its face, that plaintiff assigned the notes to evade a judgment that might be rendered against him. According to his own showing he feared his wife might recover alimony, and, therefore, he assigned the notes. The fact that he had an agreement with his wife not to demand alimony, was not binding on either. She still had a right to ask and recover alimony. But even if she had been barred by such agreement, when the plea was made in the divorce suit, yet if plaintiff assigned his property while such demand was pending for the express purpose of defrauding a possible claim, then it is such an assignment as leaves him without legal or equitable remedy. Randall v. Howard, 2 Black 585; Trimble v. Doty, 16 Ohio St. 118; Broom's Legal Max., (7 Ed.) § 730 et seq; Nellis v. Clark, 20 Wend. 24.

NAPTON, J.

The object of this action is to set aside certain transfers of notes and other personal property from plaintiff to defendant, as fraudulently obtained, and to subject certain real estate of the defendant, into which it is alleged this personal property was converted by defendant to the satisfaction of this claim. The facts recited in the petition, upon which the plaintiff bases his claim to relief, are substantially as follows: The plaintiff, as he alleges, was a man of weak mind, easily alarmed and readily imposed on by one who had his confidence. He was married sometime in 1859, to Mrs. Ann Maxey, and they lived together till about June, 1870, when they parted. Previous to their separation, with a view to settle any claim she might have to alimony, it was agreed between them that plaintiff should give certain property to his wife, which she agreed to receive in lieu of all claims against him. The plaintiff, in pursuance of this agreement, on the 28th day of June, 1870, transferred to one Dougherty, as trustee for her, property of the value of $1,000. Previous to this she had authorized a suit to be commenced against him for a divorce, but the attorney who prepared the petition, not being apprised of this arrangement and division of property between them, inserted in the petition the usual claim for alimony, fixing the amount at $1,000. The plaintiff, when served with notice of this suit, was alarmed, and relying on the friendship of defendant, employed him to see his wife and get her to desist from this claim. The defendant accepted this trust, and did accordingly visit Mrs. Poston, and was informed by her that she had no claim for alimony; that the plaintiff and she had arranged that matter satisfactorily; that if her attorney had put in her suit for divorce such a claim, it was a mistake, and she would have it corrected. The defendant, however, notwithstanding this disclaimer, advised her to insist on the claim, saying that the plaintiff was a “trifling fellow,” and that she ought to put him through, but she still declined. It is further alleged that when defendant returned from this visit to plaintiff's wife, he stated to plaintiff that his solicitations to his wife were of no avail, that she intended to get all his property, and refused to withdraw her claim; that plaintiff was alarmed, and that defendant suggested to him that he put his property in the hands of a friend till the trouble was over, and the plaintiff being frightened and deceived, agreed with defendant to deliver to him certain notes he had on solvent persons, and did deliver them, and that defendant also took possession of certain horses and mules, belonging to plaintiff, without his knowledge or consent, and converted them to his own use. All this was done, as is alleged in the bill, without any consideration, and the bill alleges that the notes were sold to innocent purchasers for value, but the proceeds were invested in the lots which were conveyed to defendant, and upon which the plaintiff asks a lien.

The defendant's answer is a denial of every material allegation in the petition. He asserts that he bought the notes referred to in the petition for value, that is, for seventy cents on the dollar, and that he gave $360 for the horses, mules, &c.

It is unnecessary to rehearse the testimony of plaintiff, which is merely a recital under oath of all the material charges made in the petition, and, so far as his evidence goes, clearly establishing the truth of each, not excepting the one which declares him to be of weak mind. The testimony of the defendant is equally positive the other way. In short, there is an irreconcilable conflict in the proof, especially between that of plaintiff and defendant. There is no possibility of attributing these differences to mistake, inadvertence or the unconscious influence to which self interest occasionally subjects the fairest and most honest intentions. There is, however, one point upon which we are not compelled to rely on the mere statements of plaintiff and defendant, and, as it is the point upon which our conclusions will be based, I will state the facts as they seem to be established, not merely by the plaintiff's testimony, uncontradicted except in a general way, by defendant, who fails to give any version of what occurred himself, but as they are confirmed by the testimony of plaintiff's wife, by her attorney, Judge Barrow, and his partner, Mr. Harrington, by Dougherty, her trustee, and by her brotherin-law, Pogue, at whose house Mrs. Poston was living when the interview between her and the defendant occurred. And I may add that the results which followed very strongly if not conclusively, show that the occurrences stated by these witnesses are correctly stated in all essential particulars.

It appears then, from this testimony, that after the separation of plaintiff and his wife, and before he had been served with a copy of the petition for divorce, he and his wife had agreed upon an amicable division of property, by his giving her, or rather her trustee, Dougherty, all the property brought by her into the marriage and a satisfactory division of its increase between them, the wife agreeing that she would relinquish, in consideration of this division, all claims whatever against him for alimony, or on any other account. After this, the plaintiff was served with the petition in the divorce suit, in which a claim for $1,000 was asserted. This claim was put in the petition by her lawyer without her knowledge, but it seems, gave the plaintiff, who was not aware of this, great uneasiness. He rode over to the town of La Plata and stopped at the house of defendant, who, it appears, kept a hotel or...