Shanklin v. McCracken

• Decision Date: 29 June 1897
• Citation: 41 S.W. 898,140 Mo. 348
• Parties: Shanklin v. McCracken et al., Appellants
• Court: Missouri Supreme Court

41 S.W. 898

140 Mo. 348

Shanklin v. McCracken et al., Appellants

Supreme Court of Missouri

June 29, 1897

Appeal from Grundy Circuit Court. -- Hon. Paris C. Stepp, Judge.

Reversed and remanded.

George Hall and C. H. S. Goodman for appellants.

(1) None of the numerous cases in which section 8922 has been construed by this court sustain the action of the trial court. Berry v. Hartzell, 91 Mo. 132; Moore v Moore, 51 Mo. 118; Entwhistle v. Feighner, 60 Mo. 214. (2) The wife was competent as to any fact which she did not learn from her husband. Stein v. Weidman, 20 Mo. 17; 29 Am. and Eng. Ency. of Law, 630. Her testimony as to what she saw would violate no rule of marital confidence. When admonished not to state any part of the conversation which passed in her hearing, she could with as much propriety testify to any gesture or motion of her husband as if she had been out of earshot or totally deaf. It may be urged that if this testimony had been admitted it could not have changed the result, but this assumption is wholly inadmissible. The exclusion of relevant testimony is almost always a material error; and the same rule prevails in equity cases as in cases at law; otherwise objections to the introduction of incompetent evidence, or exceptions to the action in excluding competent evidence, would be merely idle forms. Where the evidence as to a particular issue is seemingly equally poised, the exclusion of competent evidence, however slight, is prejudicial error. Elliott's Appellate Procedure, sec. 670.

Hugh C Smith, A. W. Mullins and J. H. Shanklin for respondent.

(1) The circuit court did not err in ruling that Mrs. Catherine McCracken, widow of John A. McCracken, was not competent to testify as to acts claimed by the defendants to have occurred between James McCracken and said John A. McCracken. The law in this State is well settled that "the wife is not a competent witness to prove what is said in a conversation by another person with her husband, nor to prove any act done in connection with such conversation and which might be explained thereby." McFadin v. Catron et al., 120 Mo. 252, 274; Holman et al. v. Bachus, 73 Mo 49; Moore v. Wingate, 53 Mo. 398; Waddle v. McWilliams, 21 Mo.App. 298; Willis v. Gammill, 67 Mo. 730, 731; 2 R. S. 1889, sec. 8922, last clause.

Brace J. Burgess, J., not sitting.

OPINION

In Banc.

Brace, J.

-- This is a suit in equity to set aside three deeds, signed, sealed, and acknowledged by James McCracken on the nineteenth of June, 1888, and thereafter duly recorded, conveying certain real estate in Grundy county, described in the petition, to his father, John A. McCracken, on the ground that said deeds were made without consideration, with the intent to hinder, delay, and defraud the creditors of the said James; and were never delivered to the said John A. McCracken, since deceased, whose widow, administrator and heirs at law are the defendants herein.

It appears from the evidence that at the time the deeds were made the said James McCracken was indebted to his father in the sum of about $ 2,000, unsecured, and in like manner was indebted to Shanklin & Austin, bankers of Trenton, Missouri, in about the sum of $ 3,000, besides other secured indebtedness. Of the business of the firm of Shanklin & Austin, composed of John H. Shanklin and William E. Austin, the said William E. Austin was the active manager; he was also the friend and business adviser of the said James McCracken. On the third of October, 1888, Shanklin & Austin made an assignment to Nathaniel and Walter Shanklin, and thereafter said assignees instituted suit against said James McCracken to recover the amount of his indebtedness to Shanklin & Austin at that date; and on the third day of May, 1890, obtained judgment thereon against said James McCracken for the sum of $ 7,849.11 upon which execution was thereafter issued, under which the premises were sold, and the plaintiff, Nathaniel Shanklin, became the purchaser thereof at the price of $ 1,000 and received a sheriff's deed therefor, and holds the title thus acquired in trust for the said concern of Austin & Shanklin. Afterward, at the December term, 1892, of the circuit court of Grundy county, the present suit was instituted, which resulted in a finding of the issues for the plaintiff, and in a decree setting aside the deeds, and vesting James McCracken's title in the plaintiff, from which decree the defendants appeal. The evidence further tended to prove that at the time the deeds in question were made the said James McCracken was having serious trouble with his wife, and that both he and his said creditors were desirous of his making some disposition of his real estate that would relieve it of her inchoate right of dower, in view of the probable action she might take against him and his property, and thereby protect the same for the benefit of himself and his creditors. In order to accomplish this purpose it was necessary that deeds should be made in which James McCracken's wife should join, relinquishing her dower, conveying his lands to some third person. This she consented to do upon payment to her of $ 700 by James McCracken, and they were accordingly so made to his father, after consultation with and advice from the said William E. Austin as to the proper course to be pursued. A short time after the deeds were made they were placed by James McCracken in his pocket book, called a banker's case, in which he kept his papers for safety, at the bank of Shanklin & Austin, where they remained until some time after the death of his father (who died September 4, 1889), when they were taken away by James McCracken, and some time thereafter they were filed for record by the administrator of John A. McCracken, and recorded.

It was admitted on the trial by the defendants "that the deeds in controversy were made by James McCracken to John A., his father, in good faith as security for the indebtedness that James McCracken owed to his father at the time, and were not intended as absolute conveyances." W. E. Austin, who was introduced as a witness on the part of the plaintiff in the course of his examination, testified as follows: "I think I know all about the deeds that were made by James McCracken and wife to his father. They were made on account of his wife and himself having trouble and to get the title out of her, and were put in the pocket book there with my knowledge and the agreement between him and his wife was left with me by the attorneys. These papers were put in the bank in my custody in 1888, in the fall or summer, and remained there until some time in 1890. . . I knew beforehand that they were about to be executed. . . I learned from James McCracken that the deeds were about to be executed . . . I advised him to get the title out of his wife if he could. I did not advise him where to put the title or suggest any person to whom the deed should be made . . . I permitted this deed which conveyed all of Jim's property to the old man to be made without objection, but I was surprised when the administrator caused it to be put on record.

"Q. What was the occasion of the surprise, if you knew of its existence? A. Because the deed was not intended for the old man at first; it was intended to secure his indebtedness to me as well as to the old man.

"Q. Were you mentioned in the deed? A. We expected for the old man to fix up the entire indebtedness, so he could handle the land himself. We didn't want the land.

"Q. It was conveyed to the old man for the purpose of paying the entire amount of Jim's indebtedness to you and everybody else? A. Yes, sir; and Jim endeavored to get a loan on the farm for that purpose. That was my understanding of the matter.

"Q. That the conveyance was made to the old man for the purpose of securing the whole of Jim's indebtedness? A. No, sir; for the old gentleman to get the title.

"Q. What did you say a moment ago -- that it was for the purpose of securing indebtedness? A. The wife wouldn't sign the deed of trust, and these deeds were not delivered, and didn't intend to be made out until their papers were made out; that is, to get an eastern loan if he could. Jim was to get it.

"Q. How could Jim get an eastern loan with the title in the old man? A. It was not in the old man.

"Q. If this title was in the old man by virtue of this deed, how could Jim get a loan on the land? A. I stated before the deed had not been delivered.

"Q. If not then he couldn't get a loan with any greater facility than he could before. His wife still stood in the way if the deed had not been delivered? A. If he got the paper from the old gentleman these papers could have been placed on the record.

"Q. The intention was these deeds could be placed on the record? A. After he secured an eastern loan.

"Q. Was his wife to join in that loan? A. I don't know.

"Q. You can't explain how it was that this deed was executed for the purpose of getting an eastern loan? A. I stated why the deeds were given.

"Q. Yes, sir; to get rid of his wife's interest in the land. After the deed was executed extinguishing the wife's title, then Jim was to get an eastern loan? A. Yes, sir; that was my understanding.

"Q. Was it the understanding that his wife was to get a divorce? A. I don't know anything about that.

"Q. How could Jim mortgage this land with the title in the old man? A. I told you what I understood about it; that if Jim could secure an eastern loan he intended to get a paper or deed from his father, I suppose it would take, and have it re-conveyed to him; and secure his loan that way, so that he could handle the land."

He further testified to a talk with James McCracken had in 1890 as follows: "It occurred in Mr. Harber's office. Mr. Harber and myself and Nathaniel...