Spratt v. Early

• Decision Date: 18 June 1902
• Citation: 69 S.W. 13,169 Mo. 357
• Parties: SPRATT v. EARLY et al., Appellants
• Court: Missouri Supreme Court

69 S.W. 13

169 Mo. 357

SPRATT v. EARLY et al., Appellants

Supreme Court of Missouri, Second Division

June 18, 1902

Appeal from Buchanan Circuit Court. -- Hon. W. K. James, Judge.

Reversed and decree here.

M. G. & J. Moran for appellants.

(1) The only cause of action alleged in plaintiff's petition is that the deed under review was made without any consideration whatever and with fraudulent intent, etc. No evidence whatever was introduced in support of this allegation; and a finding or judgment unsupported by evidence should be set aside. Callahan v. Wame, 40 Mo. 132; Boland v Railroad, 36 Mo. 491; R. S. 1899, secs. 798, 799. It would appear from the findings of fact as made by the court that it went outside of the pleadings, and engrafted new issues into the case. In this regard it erred, as the judgment must be founded upon facts consistent with and embraced within the pleadings. Newham v. Kenton, 79 Mo. 382; Muenks v. Bunch, 90 Mo. 500. (2) The trial court erred in bottoming its findings of fact and judgment upon the theory that because defendant Early was living and making his home with his mother, at the times he loaned her the money, he could not recover because the law presumed such advancements to be gifts. In this singular holding, the court reserves the rule, and places the child's property at the mercy of the "prowling creditors" of the parent. Miller v. Simmons, 72 Mo. 669; Street v Goss, 62 Mo. 226; Taylor v. Taylor, 8 How. (U. S.) 183. (3) When the court found that Early advanced his mother money before and after attaining his majority, and while living with her, then it was in duty bound in law and equity to find that she obtained the money under an agreement to pay it back unless plaintiff showed to the contrary by clear, direct and positive testimony. 1 Story on Eq. Juris., secs. 307, 308, 309; Taylor v. Taylor, supra; Miller v. Simmons, supra. (4) The court, in its findings of fact, found "that in 1872, defendant Elizabeth Duffy became, and until August 25, 1895, continued to be, the owner of a homestead exemption." The testimony is clear, direct and positive in support of this finding. It would appear, however, that the court, in another and later finding, found that in April, 1894, she left and abandoned her homestead. If that be the true meaning of the court's language, then there is no testimony to support the later finding. The testimony is clear, direct and positive that she had a homestead exemption in the property sold to Dawson up to and including August 25, 1895, the day she executed her deed to it. To produce abandonment of the homestead, the party must forsake and leave it with the present intent never to return to it again as a homestead. Smith v. Bunn, 75 Mo. 559; Leak v. King, 85 Mo. 413; Kaes v. Gross, 92 Mo. 655; Duffy v. Willis, 99 Mo. 135; Mills v. Mills, 141 Mo. 195; Potts v. Davenport, 79 Ill. 455; Leonard v. Ingraham, 58 Iowa 406; Riley v. Riley, 26 N.E. 604; McFarland v. Washington, 14 S.W. 354; Kati v. Joachinsthal, 56 N.W. 1101. (5) The court found that Mrs. Duffy owned her homestead on August 25, 1895, and on that day sold it to Dawson. She had the right to do with the proceeds of the sale as she pleased, and such acts on her part were not and could not be in fraud of right of plaintiff. Macke v. Byrd, 131 Mo. 682; Bank v. Guthrey, 127 Mo. 193; Hart v. Leete, 104 Mo. 337; Grimes v. Portman, 99 Mo. 227; Kendall v. Powers, 96 Mo. 142.

John F. Tyler, John A. Connett and Jo. F. Woodson for respondent.

(1) Fraud is rarely ever susceptible of positive proof. Its vermiculations are chiefly traceable by covered tracks and studious concealment. It is not presumed, but anything which satisfies the mind and conscience of its existence is sufficient. Massey v. Young, 73 Mo. 273; Leeper v. Bates, 85 Mo. 228; Snyder v. Free, 114 Mo. 376. (2) The grantor and grantee in the deed which respondent is seeking to set aside were, respectively, mother and son. The grantor and her husband were insolvent prior to and at the date of said transfer. There were many suspicious circumstances detailed in evidence in this case. "Fraud must be proved and can not be presumed. . . . The relationship of the parties and the insolvency of the grantor are not sufficient, in themselves, to establish fraud, but these, when added to other suspicious circumstances, may often furnish satisfactory evidence of fraud." Robinson v. Dryden, 118 Mo. 539. (3) Under all the evidence, facts and circumstances shown in the trial of this case, the finding of the chancellor that the deed conveying the property in controversy from Mrs. Duffy to Early was fraudulent and void as to plaintiff, was proper. Imhoff v. McArthur, 146 Mo. 378; Milling Co. v. Burnes, 144 Mo. 192. (4) The fact that defendants Daniel and Elizabeth Duffy, with their entire family, removed to and lived on the farm mentioned in the evidence as the "Henshaw property," situated a few miles from the city of St. Joseph, which property they had leased for one year, and then lived in rented property after their removal from said farm to the city of St. Joseph, a total time of nearly a year and one-half, their former homestead being rented all of said time to different tenants, they never again, after removing to said farm, occupying said former homestead as a home, makes a prima facie case of abandonment of said homestead. St. Louis Brewing Co. v. Howard, 150 Mo. 451; Duffy v. Willis, 99 Mo. 136; Smith v. Bunn, 75 Mo. 559; Kaes v. Gross, 92 Mo. 655.

OPINION

GANTT, J.

On October 18, 1899, the plaintiff instituted this suit in equity to set aside a deed from Daniel H. Duffy and wife to their co-defendant, Daniel H. Early, and to subject the lot of land described in said deed to the lien of a judgment obtained by plaintiff against said Daniel H. and Elizabeth Duffy his wife, in the circuit court of Buchanan county at the September term, 1898.

The plaintiff alleges that he obtained said judgment on a note executed by Daniel and Elizabeth Duffy on April 16, 1894, for $ 695.53, to one John Vahey, which, for value received, said Vahey assigned to plaintiff. He further alleges that on September 8, 1898, the defendants Daniel and Elizabeth Duffy were the owners in fee simple of lot 9, block 28, in Patee's addition to the city of St. Joseph, and on said date with the intent to cheat, defraud, hinder and delay their creditors, and without any consideration whatever, executed and delivered to said Daniel H. Early, their co-defendant, a general warranty deed, by which they purported to convey to said Daniel H. Early said above described lot or parcel of land; that said Daniel Duffy and wife are insolvent and have no other property out of which said judgment can be enforced.

Daniel H. Early filed a separate answer which, omitting caption, is in these words:

"Comes now Daniel H. Early, one of the above-named defendants, and for his separate answer to plaintiff's first amended petition says, that he denies each and every allegation therein contained.

"For further answer defendant Daniel H. Early says that on August 29, 1895, he purchased from the plaintiff, the said William E. Spratt, the property described in plaintiff's amended petition, and paid him two thousand five hundred dollars therefor. That he thereafter continued to own said property until the third day of January, 1896, when he sold and transferred said property to Elizabeth Duffy in consideration of two thousand five hundred dollars, to be paid to him by the said Elizabeth Duffy in the future from that date, and that in the event of the said Elizabeth Duffy failing to pay him said sum of two thousand five hundred dollars, the purchase price of said property, then she was to reconvey said property back to him, the said Early. That pursuant to this agreement the said Elizabeth Duffy continued to own the naked legal title in and to said property until September 8, 1898, when, being unable to pay any part of the purchase price, she reconveyed the property back to said Daniel H. Early, under and pursuance to the agreement aforesaid. That said Elizabeth Duffy never paid any part of the purchase price, and that at the time she transferred said property back to said Daniel H. Early, she had no interest or title in or to said property other than the naked legal title, and that said property at no time was subject to any indebtedness of the said Elizabeth Duffy that was in existence on said January 3, 1896, the date said Daniel H. Early conveyed said property to her under the agreement aforesaid. Having fully answered, said defendant Daniel H. Early prays to be discharged with his costs in this behalf expended."

Daniel H. Duffy and Elizabeth Duffy filed their separate answer in said cause, which said answer is in words and figures as follows:

"Now at this day come the above-named Daniel H. Duffy and Elizabeth Duffy and for their separate answer say that they deny each and every allegation in plaintiff's amended petition contained. Having fully answered they pray to be dismissed from this action."

Plaintiff filed a reply to separate answer of Daniel H. Early denying generally the new matter alleged therein.

The cause was tried at the January term, 1899, and a decree rendered for plaintiff that said conveyance from Elizabeth Duffy and D. H. Duffy, of date September 8, 1898, to Daniel H. Early of lot 9 in block 28 in Patee's addition to the city of St. Joseph, was null, void, and of no effect; that said judgment was a lien thereon, and gave defendants thirty days in which to pay the same and in case of their failure to pay it in that time, the sheriff should sell the same as in case of sales under execution, to satisfy said judgment and costs. At the request of defendants the court made a special finding of facts...