Roberts v. Barnes

• Decision Date: 12 March 1895
• Parties: Roberts, Appellant, v. Barnes et al
• Court: Missouri Supreme Court

30 S.W. 113

127 Mo. 405

Roberts, Appellant, v. Barnes et al

Supreme Court of Missouri, First Division

March 12, 1895

Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.

Reversed and remanded.

Turner Hinton & Turner for appellant.

(1) The deed of trust, assailed and sought to be set aside by plaintiff's bill in this case, should have been declared void by the court below, because the same was executed acknowledged, certified and delivered, contrary to, and in violation of, the law of this state, on the first day of the week, "commonly called Sunday." Jones, Mortgages 623; Barret v. Tel. Co., 39 Mo.App. 611; Thompson v. Tel. Co., 32 Mo.App. 191; Bernard v. Lupping, 32 Mo. 341; Gwinn v. Simes, 61 Mo. 335; Rogers v. Tel. Co., 78 Ind. 169; Tel. Co. v. Yapst, 118 Ind. 248; State v. Seeler, 33 Me. 339; Huson v. Foley, 110 Mass. 392. (2) The deed of trust was made in fraud of the grantor's creditors. 1 Jones on Mortgages, sec. 627; McNickel v. Rechter, 13 Mo.App. 515; Cordes v. Straszer, 8 Mo.App. 61; Burgert v. Borchert, 59 Mo. 80; Wait on Fraudulent Conveyances, p. 328, sec. 272; Holmes v. Braidwood, 82 Mo. 610. (3) If there was fraudulent intent and collusion between the parties, the bona fides of the debt secured thereby does not validate the deed. See authorities supra, and also Bump's Fraudulent Conveyances [3 Ed.] 582; Shelly v. Booth, 73 Mo. 74; Albert v. Besel, 88 Mo. 154; Fredericks v. Algier, 88 Mo. 598; Siegers' Sons v. Thomas, 107 Mo. 635; State ex rel v. Hope, 102 Mo. 410; Alberger v. White, 117 Mo. 347; Works Co. v. Machine Co., 118 Mo. 365. (4) A deed is absolutely void if made in whole or in part to use of grantor. See authorities supra, and also Donovan v. Demming, 69 Mo. 436; Gaff v. Stiver, 12 Mo.App. 115; Rice v. Cunningham, 116 Mass. 469; Lukins v. Aird, 6 Wall. (U.S.) 78; Robinson v. Stewart, 10 N.Y. 189; Schmidt v. Opie, 33 N.J.Eq. 138; Hautze v. Brady, 34 N.J.Eq. 562; Crowningshield v. Keltridge, 7 Metcalf (Mass.) 520.

Wellington Gordon for respondent.

(1) The appellate courts of this state have uniformly held, in the construction of this statute, that contracts made on Sunday are not void, as they are not prohibited by this statute. The broad distinction between the above statutes and the statutes of other states, where the courts have held to the contrary doctrine, is in the use of the word "business," which is not embraced in this section of our statute. Kaufman v. Hamm, 30 Mo. 388; Glover v. Cheatham, 19 Mo. 656; More v. Clymer, 12 Mo.App. 14; Guinn v. Simes, 61 Mo. 335; Bloom v. Richards, 2 Ohio St. 388; Merritt v. Earle, 29 N.Y. 115; Boynton v. Page 13 Wend. 229; Johnson v. Brown, 13 Kan. 530. (2) This deed of trust was binding between the parties, although the court may hold the acknowledgment is void. Keene v. Schnedler, 92 Mo. 516; Rood v. Renfroe, 58 Mo. 265. (3) The deed of trust was executed and delivered in January and the judgment rendered against Barnes et al. in February, 1891, following. A judgment creditor is not a purchaser for value, and an unrecorded deed holds against all parties, except purchasers for value without actual notice. Davis v. Owenly, 14 Mo. 133; Maupin v. Emmons, 47 Mo. 306; Black v. Gregg, 58 Mo. 566. (4) The acknowledgment taken by the justice of the peace, to this deed of trust, though taken on Sunday, is legal and valid. Taking an acknowledgment to a deed, is a ministerial, and not a judicial act, and is not prohibited by section 3260, Revised Statutes, 1889, which applies alone to judicial acts, and prohibits courts from transacting "business" on Sunday. State v. Green, 37 Mo. 466; Wertheimer v. Howard, 30 Mo. 420; Stone v. Graves, 8 Mo. 151. (5) The evidence in this cause shows clearly that the deed of trust is not void as to the creditors of Thomas J. Barnes. The four notes secured were bona fide debts, due from Barnes to Bratton as administrator of the estate of William Bratton, deceased, and there is no evidence in this case showing to the contrary. There is no collusion between Bratton and T. J. Barnes for the purpose of securing an indebtededness which did not exist, or a part of which was fictitious and fraudulent, as there was in the cases cited as authority by appellant's counsel. Cordes v. Straszer, 8 Mo.App. 61; State ex rel v. Hope, 102 Mo. 429; McNichols v. Rubleman, 13 Mo.App. 515; Alberger v. White, 117 Mo. 347.

OPINION

Brace, P. J.

This is an action in equity by the plaintiff, assignee of a judgment against the defendant Thomas J. Barnes, to set aside a deed of trust executed by the said Barnes and wife, dated the seventeenth day of January, 1891, and certified to have been acknowledged by them on that day by Josiah Hall, J. P., whereby the said Barnes and wife conveyed, subject to a prior deed of trust for $ 4,500, to defendant W. A. Gooding, a tract of land containing three hundred and twenty acres in Boone county, in trust to secure the payment of four promissory notes, amounting, principal and interest, to about the sum of $ 3,500, payable to Wm. Bratton, late of that county, deceased, and of whose estate the defendant James W. Bratton was then administrator, on the ground that the deed was executed and acknowledged on Sunday; was made for the purpose of defrauding the creditors of the said Barnes; and in secret trust for his benefit. The court, upon the hearing, found for the defendants and dismissed the bill; and the plaintiff appeals.

At the time of the execution of the deed of trust in question, the said Barnes was insolvent, and being pressed by his creditors. The notes secured thereby were found among the assets of William Bratton, deceased, by his son, and administrator, James W. Bratton.

Barnes' first wife was a daughter of William Bratton, deceased, and his children by her were distributees of that estate. Tillman Kemper married another daughter of the said William Bratton and he was thus interested in the estate. Kemper, who was introduced as a witness in behalf of the defendant, testified in substance as follows:

"I had a conversation with Thomas J. Barnes about the execution of this deed of trust the Saturday night before the instrument was drawn. I had been trying for some time to get him to do something about this deed of trust. He claimed that he had paid a portion of the amount due on these notes which he owed the estate, but had no evidence of the fact. I told him he ought to secure the notes, and we talked the matter all over that Saturday night at his house. And the next morning he came to me and said: 'I believe I will give a deed of trust covering the whole thing.' I told him that was what he ought to do; that he would pay his individual debts and that his children would get a benefit of it. And I told him if he paid these other debts, it would go where neither his people nor his children would get any good of it. James Bratton came to Barnes' house the next morning. I think he was sent for. I told him in the house, in the presence of Barnes, that Barnes had agreed to give the deed of trust covering all the notes. Then Barnes had his son Alfred there, and they went out into the yard and had another conversation, but I do not know what was said between them."

Thomas J. Barnes, who was introduced as a witness by the plaintiff testified: That on Sunday morning, January 18, 1891, Tillman Kemper and James W. Bratton were at his house urging him to give a deed of trust on his farm to secure some notes (the same described in the deed of trust), which they claimed witness owed the estate of William Bratton, deceased; but that witness claimed that he had paid all but one note and refused to give any deed of trust whatever at first; but that he finally agreed to do so on certain conditions; that these conditions were that when the deed of trust was closed out by sale of the land Bratton should collect and refund to witness all the proceeds of sale over and above the amount necessary to pay the note which he admitted to be due, which at that time, with interest, amounted to about $ 1,100. It was also agreed that Bratton should have Judge Hall to draw up a paper showing that he would carry out the conditions; that witness' son, A. M. Barnes, came out to witness' house about the time the agreement was made between witness, Bratton and Kemper, and heard the conditions stated; that, pursuant to the arrangements thus made, the parties then went to Hallsville and saw Judge Hall about drawing up the deed of trust; that it was then arranged that witness should return home and bring his wife to A. M. Barnes' house in Hallsville that same Sunday afternoon to execute the deed of trust; that, in accordance with this arrangement, witness and his wife met Bratton and Hall at A. M. Barnes' about 4 o'clock Sunday afternoon, and that on this occasion the whole agreement about the deed of trust and the conditions upon which it was to be given were stated to Judge Hall, who objected to drawing the deed and taking the acknowledgment on Sunday on the ground that it would not be legal; but that finally upon being urged by witness and Bratton, Hall consented to write the deed and take the acknowledgment that afternoon, and to date the certificate and deed back to Saturday, the seventeenth, so that no one would ever know anything about it; that it was agreed on all hands to keep the matter a secret. Tillman Kemper was not present when the deed was drawn up and executed. While the deed was being drawn up, or just afterwards, it was arranged for witness and Bratton to call at Hall's office in a day or so and get him to draw up a paper showing that Bratton was to collect the full amount of the deed of trust and then pay back to witness all over and above the $ 1,100 note; that this paper was never drawn up, however, because witness...