Standard Investment Co. v. Hoyt

• Decision Date: 28 June 1901
• Citation: 63 S.W. 1093,164 Mo. 134
• Court: Missouri Supreme Court
• Parties: STANDARD INVESTMENT CO. v. HOYT et al.

63 S.W. 1093

164 Mo. 134 (1901)

STANDARD INVESTMENT CO. v. HOYT et al.

Supreme Court of Missouri, Division No. 2.

June 28, 1901.

NEW TRIAL—NEWLY-DISCOVERED EVIDENCE.

Complainant was the execution purchaser of certain realty alleged to belong to defendant H., and sued to set aside certain conveyances of the property as fraudulent. Defendant H. testified that the property had been purchased by him with money belonging to his sister, in whose name the title stood, and who had furnished him with about $24,000 in money in 1879 and 1883, which money he had deposited in a bank in his own name. Subsequent to the decree in favor of the defendants, the complainant discovered evidence that defendant H. had testified in another suit that his sister gave him $8,000 in money to invest in 1882, which he put in his safe, and did not open any bank account for his sister at all until 1889, and that he had kept the money in his safe all the time. Held to authorise the grant of a new trial.

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Suit by the Standard Investment Company against Benjamin Hoyt and others. From a decree in favor of the defendants, the plaintiff appeals. Reversed.

H. M. Meriwether and Jas. A. Gordon, for appellant. Botsford, Deatherage & Young and Simrall & Trimble, for respondents.

SHERWOOD, P. J.

By this proceeding plaintiff seeks to devest the title out of defendants, and vest it in plaintiff, in certain real estate in Kansas City, Mo., and to set aside and declare void certain deeds which evidence that title, and by which that real estate was conveyed to defendants. The pieces of property thus litigated are—First, the Lykins place, or Twelfth street property; and, second, the Sunnyside property. After answering, defendants alleging prejudice against them of all of the judges of the Jackson county circuit court, and of the inhabitants of that county also, prayed a change of venue, which thereupon was awarded them to the circuit court of Clay county. The petition sets forth that on the 18th day of March, 1892, a judgment was obtained against defendant Benjamin Hoyt in a case wherein the state of Missouri was plaintiff and Benjamin Hoyt was defendant, for personal taxes owing from the defendant and due said state of Missouri for the years 1886 to 1889, amounting in the aggregate to over $2,000; the said judgment was appealed to the supreme court, and afterwards affirmed in part, and judgment finally entered up against Hoyt on the 12th day of November, 1894; that in December of the same year execution was duly issued on said judgment, directed to the sheriff of Jackson county, who on the 12th day of December, 1894, under and pursuant to said execution, levied upon the real estate above described as the property of defendant Hoyt; that on the same date said execution was duly filed in the office of the recorder of deeds of Jackson county, Mo., setting forth said judgment, and describing the property levied upon as required by statute; that, proceeding under said execution, the sheriff duly advertised and sold all of the above-described property, and the plaintiff became the purchaser thereof at the sheriff's sale, and obtained a sheriff's deed therefor on the 9th day of March, 1895, which was duly recorded on the 18th day of March, 1895; that at the time said execution referred to was filed for record, as aforesaid, all of the above-described real property stood on the records in the name of the defendant Sarah J. Smith, but that said property was in truth at that time owned by the defendant Benjamin Hoyt, and that the said Sarah J. Smith, who is the sister of the defendant Benjamin Hoyt, was simply a nominal trustee to hold the title of said property so as to prevent the same from being levied upon and seized as the property of Hoyt; that the Lykins place or Twelfth street property was transferred to defendant Sarah J. Smith, on the 15th day of September, 1890, by one David H. Porter, as trustee, under a deed of trust executed by one Frank Stevens to secure the payment of a certain note to one B. Miller; that at the time of said trustee's sale the defendant Benjamin Hoyt was the legal owner and holder of the indebtedness secured by said deed of trust, and that at the sale said property was bought in, and he procured the deed to be made to his sister Sarah J. Smith, for the purpose aforesaid, and that no consideration whatever passed from Sarah J. Smith to said trustee or to any other person for said property, and that said conveyance to said Smith was merely voluntary; and, as to the Sunnyside property, the petition sets forth that the same was conveyed to Sarah J. Smith by James and Mary Kehoe on May 12, 1894, and that the consideration for said conveyance was a note or notes owned by said Kehoe and wife to defendant Benjamin Hoyt, which note or notes had been made by Mary E. Lyon to said Benjamin Hoyt on the 22d day of December, 1885, and a deed of trust given on that date to George H. English for the benefit of Benjamin Hoyt; that said deed of trust was afterwards foreclosed, and the property bought in by Hoyt, though he procured the deed to be made to Sarah J. Smith, and that no consideration moved from Sarah J. Smith to said trustee for said property; that after said property had been levied upon by the sheriff, and said levy duly recorded, the defendant Benjamin Hoyt did, on the 14th day of January, 1895, procure the defendant Sarah J. Smith to make a conveyance of all said property to defendant Susan C. Stevens, for the purpose of further hindering, delaying, and defrauding the creditors of said Hoyt, and of so clouding the title as to prevent said property from being sold for a fair consideration at the sheriff's sale; that the defendant Susan C. Stevens, within a few days thereafter, executed to defendant J. H. McGee, trustee, a deed of trust, purporting to secure to Sarah J. Smith two notes, of $2,250 each, as part payment for the above-described real estate, and that on the same date the said Susan C. Stevens conveyed all of said property by a warranty deed to defendant J. K. Miller Stevens; and it is set forth that in each of these cases the transfers were without any consideration in fact, and merely for the purpose of clouding the title as aforesaid, and that each of the defendants knew at the time that said real estate had been levied upon and seized by the sheriff for the purpose of satisfying the judgment against the defendant Benjamin Hoyt, as above mentioned. Plaintiff prays for a decree to vest the title to all of said real estate in the plaintiff, and a finding that at the time of the levy, to wit, on the 12th day of December, 1894, the said defendant Sarah J. Smith was merely a trustee for defendant Benjamin Hoyt, and adjudging fraudulent and void as against plaintiff the conveyance from Sarah J. Smith to Susan C. Stevens, and from Susan C. Stevens to McGee, trustee, and from Susan C. Stevens to J. K. Miller Stevens.

All of defendants answered. The answer of Sarah J. Smith admits that she acquired the Lykins place property from D. H. Porter, trustee, and the Sunnyside property from George H. English, trustee. She admits on the 14th day of January, 1895, she conveyed all of the said property to Susan C. Stevens. All the other allegations in the petition are denied. The answer of Susan C. Stevens admits that she paid no consideration for the property, and that she took the title to said property, made said notes and deed of trust and warranty deed, as a matter of accommodation to her brother J. K. Miller Stevens, in order that his credit might not be impaired by giving the said notes and deed of trust. The answer of J. K. Miller Stevens admits the same fact admitted by other defendants, and claims to have bought said property in good faith and for a valuable consideration. The answer of Hoyt admits the same facts as other defendants, but denies all other statements in the petition.

The evidence in this cause, largely contained in depositions, documents, and other papers, was, in substance and effect, as follows: That Benjamin Hoyt was a man of considerable means, who brought with him to Kansas City, in 1856, as much as $7,000 or $8,000 in money, and he engaged in loaning this money upon chattels and real estate, and in the wheat business; that afterwards, at various times, according to his own evidence, he had a large amount of money and property of his own; that at one time he had as much as $10,000 in gold, and at another time as much as $10,000 in United States government bonds; that he made $12,000 to $15,000 in one deal in 1893; that he sold certain real estate on Union avenue, in Kansas City, for $12,000 cash in the 70's, but he states that one-half of this money belonged to his sister Mrs. Smith. No attempt was made by the plaintiff to trace the money and property of Hoyt at an earlier period than 1883, when it appears he opened a bank account in his own name in Kansas City with the banking house of Foster, Crouse & Co. It appeared that he sent from New York to Miller Stevens, in Kansas City, in 1879, $7,000 by express. Hoyt said that this money belonged to Mrs. Smith, but he also stated that when he came to Kansas City a few weeks afterwards, and had a settlement with Miller Stevens, Stevens was a few hundred dollars short, and he gave a chattel mortgage to secure the amount due from him. This chattel mortgage is for the sum of $411. The mortgage is dated April 24, 1879, and shows that the notes were payable to Benjamin Hoyt. It also appeared from the evidence that Benjamin Hoyt loaned to said Miller Stevens and his wife, E. H. Stevens, $1,200 in December, 1887, which amount was secured by a note given to Hoyt, and a chattel mortgage covering about everything that Stevens owned at that time. Stevens, in his evidence, asserts that he never received this money. He had forgotten about the mortgage, but inasmuch as the bank account of Hoyt on the same...