Stam v. Smith

• Decision Date: 02 July 1904
• Parties: STAM v. SMITH et al.
• Court: Missouri Supreme Court

81 S.W. 1217

183 Mo. 464

STAM v. SMITH et al.

Supreme Court of Missouri, Division No. 2.

July 2, 1904.

FRAUDULENT CONVEYANCE—HOMESTEAD — EVIDENCE —DECLARATIONS — ADMISSIBILITY — WITNESSES — COMPETENCY — STATUTE—ADMINISTRATOR.

1. In an action by a judgment creditor to set aside an alleged fraudulent conveyance of the homestead of the debtor, a general finding for defendant raises a presumption that the trial court found as a matter of fact that the land conveyed did not exceed $1,500 in value, in the absence of a special finding on that issue.

2. Creditors have no right to complain of any disposition that the owner of a homestead may make of it.

3. There can be no fraudulent conveyance of property as to a creditor, when he has no right to subject the property to the payment of his debt.

4. The fact that the owner of land, after conveying it, remained on the land, is not conclusive of fraud as to the creditors; the deed being of record.

5. Rev. St. 1899, § 4652, providing that, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the other party to such contract shall not be admitted to testify, does not, in an action to set aside a deed as in fraud of the creditors of the grantor, disqualify the grantees of the deed as witnesses, though the grantor is dead.

6. In an action to set aside an alleged fraudulent conveyance, proof of statements of the grantor, made after the deed was delivered and in the absence of the grantees, is inadmissible to affect the title of the grantees.

7. In an action to set aside an alleged fraudulent conveyance, the question whether the grantees in the deed had the means to furnish the money which they testified they had furnished the grantor in consideration of the deed is one of fact for the trial court.

8. An administrator cannot assail the conveyance of his intestate for fraud of the intestate.

Appeal from Circuit Court, St. Francois County; Jas. D. Fox, Judge.

Suit by Thomas H. Stam, executor of the estate of A. Parkhurst, deceased, against Lucinda M. Smith and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Geo. M. Wilson and Jerry B. Burks, for appellant. Rufus C. Tucker and B. H. Marbury, for respondents.

GANTT, P. J.

This is a suit in equity to set aside a deed from Zebulon Murphy to Mrs. Lucinda Smith on the ground that it was made to hinder, delay, and defraud the creditors of said Murphy. The plaintiff, as executor of Mr. Parkhurst, in the lifetime of said Zebulon Murphy obtained a judgment on the 13th of November, 1896, in the circuit court of St. Francois county, for $173,85. Zebulon Murphy died about January 1, 1897, and after his death the said judgment was exhibited and classed against his estate. It was alleged that said Zebulon Murphy at the time of his death was indebted to a considerable amount to J. B. Murphy, Dr. George W. Williams, and John T. Burks. On the 14th day of July, 1896, Zebulon Murphy and his wife, Amanda, conveyed their homestead, consisting of 111 acres in St. Francois county, and described as the north part of the S. E. ¼ of section 19, township 36, range 6 E., and 200 acres, the N. E. ¼ and the N. W. ¼ of the S. E. ¼ of section 10, township 34, range 5 E., also in said county, to their daughter, Lucinda M. Smith, for the recited consideration of $2,000 and the further consideration that Mrs. Smith should support her said parents during their natural lives. This deed was duly recorded July 16, 1896, and is the conveyance assailed by this suit for fraud. The answer denied all fraud and alleged that the consideration was truly stated and the money consideration paid, and that the defendants have furnished Zebulon Murphy support until his death in January, 1897, and had been and were continuing to support Mrs. Murphy, and that the 111 acres was the homestead of Zebulon Murphy, acquired long prior to the incurring of any of the debts alleged to be owing by him at the time of his death, and duly recorded in the office of the recorder of deeds, and did not exceed the value of $1,500, and the same was exempt from attachment or execution. The replication denied the new matter alleged in the answer. The cause was heard, and resulted in a finding for defendants and a dismissal of the bill. From that decree plaintiff appeals.

1. It is conceded that Zebulon Murphy and his wife had a homestead in the 111 acres, but plaintiff insists that this tract exceeded $1,500 in value, and that as to such excess the conveyance to Mrs. Smith was fraudulent. On this point the proof of the value was heard before the circuit court. The testimony was conflicting. There was no special finding made as to the value of the homestead. This was a question of fact. The witnesses were all before the trial judge, and he was better able to weigh their testimony than we possibly can be, especially as to the value of land in that country, a matter upon which the judge of that circuit would naturally have a more correct judgment than this court, and it is a case in which this court will largely defer to the judgment of the chancellor on the circuit. As there was a general finding for the defendants, it may be presumed that the court found as a matter of fact that the homestead of 111 acres did not exceed in value $1,500. As to the homestead, the creditors of Zebulon Murphy had no interest whatever. It could not be subjected to their debts, and they have no right to complain of any disposition that the owner made of it. Bank of Versailles v. Guthrey, 127 Mo. 189, 29 S. W. 1004, 48 Am. St. Rep. 621; Creech v. Childers, 156 Mo. 338, 56 S. W. 1106; Macke v. Byrd, 131 Mo. 682, 33 S. W. 448, 52 Am. St. Rep. 649; Rose v. Smith, 167 Mo. 81, 66 S. W. 940. There can be no fraudulent conveyance of property as to a creditor, when he has no right to subject said property to his debt. Davis v. Land, 88 Mo. 436; Cox v. Wilder, 2 Dill. 46, Fed. Cas. No. 3,308; Vogler v. Montgomery, 54 Mo. 584. Nor is the fact that Zebulon Murphy remained on the land conclusive of fraud, the deed being of record. Baker v. Harvey, 133 Mo. 662, 34 S. W. 853. As to the homestead, there can be no doubt as to the propriety of the judgment dismissing the bill as to that.

2. Whether there was error as to the Doe Run land must depend to a large extent upon the errors assigned as to the competency of Mrs. and Mr. Smith, the purchasers, as to the consideration paid for the land. Plaintiff insists that neither of them were competent witnesses as to the transaction between them and Zebulon Murphy; the latter being dead at the time of the trial. Section 4652, Rev. St. 1899, provides that "no person shall be disqualified as a witness in any civil action, suit or proceeding at law or in equity by reason of his interest in the event of the same as a party or otherwise, but such interest may be shown for the purpose of affecting his credibility: provided that, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify, either in his own favor or in favor of any party to the action claiming under him and no party to such suit or proceeding whose right of action is derived to him from one who is or if living would be subject to the foregoing disqualification, shall be admitted to testify in his own favor except as in this section is provided and where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator." This court, in construing this statute, has always given as "the reason of the statutory prohibition the prevention of one person testifying where death has sealed the lips of his adversary." And it is evident there is no controversy here between Zebulon Murphy or his heirs or administrators on one side, and Mrs. Smith, his daughter, on the other, as to the consideration of his deed to her. That deed is not challenged by Zebulon Murphy, nor by his heirs. The execution of the deed is not only admitted, but the plaintiff charges its execution and record. Even if that deed is fraudulent, as made to hinder or defeat creditors, Zebulon Murphy, if alive, would be estopped from setting it aside on the ground of his own fraud; and so are his heirs and his administrator. His heirs are not parties to the suit. Can it be said that he is "the other party" to this suit, within the meaning of this statute, so as to prevent his grantee from testifying as to the payment of the consideration therein named? Neither Mrs. Smith nor her husband testified to any fact about which there is any controversy between her father and herself. Her testimony was not to sustain the delivery of the deed or to deny its delivery. She is not asserting any right which is or can be denied by her father, his heirs, or administrators. Merry v. Fremon, 44 Mo. 518; Crook v. Tull, 111 Mo. 283, 20 S. W. 8; Jackman v. Robinson, 64 Mo. 292; Roan v. Winn, 93 Mo. 511, 4 S. W. 736; George v. Williamson, 26 Mo. 190, 72 Am. Dec. 203. The plaintiff is not seeking to avail himself as assignee of any right secured by Zebulon Murphy by the deed, or the consideration agreed to be paid thereby for said lands. On the contrary, he is proceeding on the theory that it was a fraudulent conveyance, and that no right accrued under it to Mrs. Smith. This suit is not upon the contract evidenced by the deed and its recitals, and hence that contract, in the meaning of the statute, is not "in issue and on trial." Plaintiff's rights lie wholly dehors that contract, and outside of the mutual stipulations of the parties to that deed, and depend upon...