Shotwell v. McElhenney

• Decision Date: 01 December 1890
• Citation: 101 Mo. 677,14 S.W. 754
• Parties: SHOTWELL et al. v. McELHENNEY.
• Court: Missouri Supreme Court

14 S.W. 754

101 Mo. 677

SHOTWELL et al. v. McELHENNEY.

Supreme Court of Missouri.

December 1, 1890.

FRAUDULENT CONVEYANCES — EVIDENCE — NEW TRIAL — SURPRISE — NEWLY-DISCOVERED EVIDENCE.

1. On a bill to set aside a conveyance as in fraud of the grantor's creditors, it appeared that the grantor and grantee were brothers, and that the grantor left the county suddenly, after making the deed, and that he was then indebted to about the value of the land. Both grantor and grantee testified to the bona fides of the transaction, and that full value was paid and received for the land. Held, that the fraud was not substantiated by the evidence.

2. A new trial on the ground of surprise is properly refused, where it appears that the surprise was occasioned by the fact that the testimony of defendants was different from what plaintiff had supposed that it would be.

3. It is proper to refuse a new trial on the ground of newly-discovered evidence, where such evidence merely tends to impeach an adverse witness, and could have been procured at the trial by the exercise of proper diligence.

Appeal from St. Louis circuit court; W. W. EDWARDS, Judge.

A. McElhenney, for appellant. D. C. Taylor and W. F. Broadhead, for respondents.

BRACE, J.

This is an appeal from a judgment of the circuit court of St. Louis county upon an issue raised between appellant, McElhenney, and Kenneth Shotwell, two of the defendants in a partition suit pending in that court, as to which of them was entitled to the interest of William B. Shotwell in the lands of his father, John Shotwell, Sr., deceased, situate in said county, sought therein to be divided. Kenneth Shotwell claimed the interest by virtue of a deed from his brother, dated August 13, 1884, and recorded August 18, 1886. The issue was raised by the answer of the appellant, who claimed the interest by virtue of two sheriff deeds, one dated 16th day of February, 1886, made in pursuance of sale under an execution upon a judgment for costs rendered in said court on the 28th of November, 1884, in another partition suit of other lands to which John Shotwell, Sr., was one of the original parties, and to which William B. Shotwell was made a party as one of his heirs after his father's death, but before final decree; the other, dated June 22, 1886, made in pursuance of a sale under an execution upon a judgment rendered in favor of John D. Woody, administrator, on the 23d of November, 1885. The appellant charged in his answer that the said conveyance from William B. to Kenneth Shotwell was made by the said William B., and accepted by the said Kenneth, "for the purpose of hindering, delaying, and defrauding the creditors of the said William B. Shotwell out of their just debts, dues, and demands, and was therefore void as against the creditors of the said Shotwell, existing at the time; and asked a decree vesting the interest of William B. Shotwell in the premises in the appellant, under his two purchases and sheriff's deeds for the same." On appellant's motion, William B. Shotwell was made a party, duly summoned, and answered the petition, disclaiming all interest in the real estate sought to be divided. Kenneth Shotwell replied to the answer of appellant denying its allegations. Upon the issue thus joined, the court treated appellant's answer as a cross-bill against the said Kenneth for equitable relief, dismissed his bill, and rendered judgment against appellant for the costs incurred in trying the same; and from this judgment the appeal is taken.

1. The evidence of the appellant on this issue tended to prove that, at the time William D. Shotwell executed the deed to his brother, he was indebted to several parties in various sums, amounting, in the aggregate, to seven or eight hundred dollars; that he left St. Louis county "suddenly," after making the deed to his brother, and went to Franklin county, Mo. The evidence for the respondent Kenneth Shotwell on this issue tended to show that he bought the land from his brother in good faith for the sum of $800, and paid the consideration therefor. The evidence tends to show that the land was worth about that amount at the date of the deed from William B. to Kenneth. Both the brothers were examined on the trial of the issue, and testified positively to the bona fides of the transaction. Their testimony was corroborated by other evidence, and the court upon the evidence found the issue for the respondent therein. After a careful examination of all the evidence we are not prepared to say that the conclusion reached...