Snell v. Harrison

• Court: United States State Supreme Court of Missouri
• Citation: 83 Mo. 651
• Parties: SNELL, et al. v. HARRISON, el al., Appellants.
• Decision Date: 31 October 1884

83 Mo. 651

SNELL, et al.
v.
HARRISON, el al., Appellants.

Supreme Court of Missouri.

October Term, 1884.

1. Practice in Equity Causes: TRIAL BY JURY.

In chancery causes the right of trial by jury does not exist, although the chancellor may, in his discretion, submit certain issues to a jury, but he

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will not be bound by their finding, and may accept or reject it, as he deems best.

2. Practice in the Supreme Court: MOTION FOR NEW TRIAL.

The action of the trial court in admitting and rejecting evidence will not be reviewed by the Supreme Court unless called to the attention of the trial court in the motion for new trial.

3. ______: FINDING OF CHANCELLOR.

The finding of the chancellor in equity causes will be deferred to by the Supreme Court, unless he has manifestly disregarded the evidence.

4. ______: JUDGMENT FOR COSTS AGAINST MARRIED WOMAN.

A judgment or decree which is otherwise regular and proper will not be reversed because costs are decreed against a married woman with others, and the Supreme Court will, in such case, modify the judgment and exempt her from liability for costs and adjudge them against the proper parties.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

W. W. Wood, Henry Neill and S. P. Sparks for appellants.

(1) The declarations of Geo. W. Harrison, grantor, in disparagement of the title of his grantee, A. B. Harrison, were improperly admitted in evidence. Abbott's Trial Ev. 740; Boyd v. Jones, 60 Mo. 454; McLaughlin v. McLaughlin, 16 Mo. 242; Cuyler v. McCartney, 40 N. Y. 165; Heinrich v. Porter, 47 Mo. 293. So the notice, motion and action of the court on the same in the case of John Snell v. G. W. Harrison and S. E. Wells, also were improperly admitted in evidence against the heirs of A. B. Harrison and Brunetta Harrison. The verdict was for the parties complaining of these errors, and they may be reviewed, although not called to the court's attention in the motion for new trial. (2) The finding of the court was against the weight of evidence, and for the wrong party according to the evidence. If the evidence so admitted erroneously against objection of defendants

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had been excluded, there would be none to support the finding and decree of the court. The court erred in sustaining plaintiff's motion to disregard the finding of the jury and in rendering its decree contrary to the verdict of the jury, and in entering a final decree for plaintiffs without a new trial. Cochran v. Moss, 10 Mo. 416. The submission of issues to a jury in chancery is regulated by statute in this state. R. S. 1879, secs. 3601, 3630, 3631, 3632, 3633. Juries are supposed to be the best tribunals to try questions of fact. Fletcher v. Drath, 68 Mo. 126. On questions of fraud in fact the verdict of a jury should not be disturbed unless the facts are entirely irreconcilable with the hypothesis of honesty and good faith. Page v. Dixon, 59 Mo. 43. The granting of a new trial was the practice in chancery in the absence of a statute. Baker v. Scudder, 56 Mo. 275; Franklin v. Greene, 2 Allen 519; Griffith v. Griffith, 9 Paige 315; Clerk, etc., v. First Sos., 45 N. H. 331; Peebles v. Peebles, 63 N. C. 656; Carter v. Campbell, Gilmer (Va.) 159; 2 Daniels' Chan. Prac., p. 115; Adams' Equity, side p. 376. In proportion to the duty of a judge in directing an issue is the obligation to be governed by the verdict. Clem v. Durham, 14 Ind. 263; 3 Greenl. on Ev. (3 Ed.) sec. 266. The decree was clearly void, as it included a general judgment for costs against all the defendants, one of whom (Brunetta Harrison) was a married woman. St. Louis v. Bernoudy, 43 Mo. 552; Wernecke v. Wood, 58 Mo. 352; Corrigan v. Bell, 73 Mo. 33; St. Jo. F. and M. Ins. Co. v. Hauck, 71 Mo. 465.

Comingo & Slover with G. N. Elliot for respondents.

(1) The chancellor is in no manner concluded or bound by the merely advisory verdict of the jury. On the contrary it is his plain duty, sitting in the forum of conscience, to disregard any opinion, verdict or influence that would shelter or shield a fraud, whether covert or palpable. Burt v. Rynex, 48 Mo. 309. The first

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jury could not agree. The second did. The judge had heard the evidence twice, and in his opinion it was such that in conscience the finding of the jury ought not to be adopted. He knew and saw and heard the witnesses. The inclination and rule of this court is not to reverse the finding of the chancellor unless it is clearly manifest he has overridden the evidence. Sharpe v. McPike, 62 Mo. 300; Hodges v. Black, 76 Mo. 537; Royle v. Jones, 78 Mo. 403. As applicable to the facts of this case see following: Potter v. McDowell, 31 Mo. 62; Wilson v. Forsyth, 24 Barb. 105; Jackson v. Mather, 7 Cow. 301; King v. Moon, 42 Mo. 551. (2) If there was any virtue in any of the objections to the evidence no such error is preserved in the record, for it was not called to the attention of the trial court in the motion for a new trial. Lancaster v. W. L. Ins. Co., 62 Mo. 121; Anthony v. Ry. Co., 76 Mo. 18.

RAY, J.

This is a suit in equity to set aside certain deeds vesting the title to certain real estate in controversy in defendant, Brunetta Harrison, and the other defendants, who are the heirs of A. B. Harrison, as being fraudulent against John Snell, deceased, and respondent, D. A. Glass. Said Brunetta is the wife, and said A. B. Harrison the brother, of one Geo. W. Harrison.

The petition charges in substance as follows: That in 1874 Geo. W. Harrison, the husband of said Brunetta, owned the land in controversy. At that time he owed said John Snell a note for $700.35, on which Snell recovered judgment in the Johnson circuit court in October, 1877. That in October, 1877, respondent, Glass, recovered judgment in said court in an ejectment suit against said Geo. W. Harrison for $300 and costs. Said Geo. W. was also largely indebted to divers other persons. That in 1875 said Geo. W. conveyed to his brother, A. B. Harrison, the father of the minor defendants, the land in controversy, which plaintiffs claim was fraudulent as to said creditors, being voluntary and without consideration, and made with intent to delay and defraud creditors,

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and that said Brunetta joined therein, with knowledge of the fraud. That while both of said suits were pending, an execution was issued out of said court for costs adjudged against said Geo. W. in said Glass' suit, which said George caused to be levied on certain of the real estate in controversy, which, at a sale in October, 1876, he bid off in the name of said A. B. Harrison, the money for...