Talley v. Buchanan, 39111.

• Decision Date: 05 February 1945
• Docket Number: No. 39111.,39111.
• Parties: FORREST A. TALLEY and CYRENA M. TALLEY v. BETTY BUCHANAN and GRANVILLE A. RICHART, Appellants.
• Court: Missouri Supreme Court

185 S.W.2d 23 FORREST A. TALLEY and CYRENA M. TALLEY
v.
BETTY BUCHANAN and GRANVILLE A. RICHART, Appellants. No. 39111. Supreme Court of Missouri. Division One, February 5, 1945.

[185 S.W.2d 24]

Appeal from Jackson Circuit Court. — Hon. John R. James, Judge.

AFFIRMED.

C.W. Prince and William R. Ross for appellants.

(1) Creditors may not be deprived of the benefit of execution by the subterfuge of foreclosure or other public sale. Woodard v. Mastin, 106 Mo. 324, 17 S.W. 308; Miller v. Leeper, 120 Mo. 466, 25 S.W. 378; Sec. 3507, R.S. 1939. (2) Where a party introduces in evidence, without qualification, an instrument of writing, he vouches for its verity and in the absence of countervailing evidence is conclusively bound by it. Chlanda v. St. Louis Transit Co., 213 Mo. 244, 112 S.W. (2d) 249; Klotsch v. P.F. Collier & Son Corp., 349 Mo. 40, 159 S.W. (2d) 589; Kolman v. His Creditors, 3 So. 382; 4 Wigmore on Evidence (3 Ed.) 97; 32 C.J.S. 1113, sec. 1040; 20 Am. Jur. 771, sec. 915; Barnsdall Refining Corp. v. Birnamwood Oil Co., 32 Fed. Supp. 308. (3) Nominal consideration of $1, expressed on face of deed, shows, in absence of evidence to contrary, that it was purely voluntary conveyance without valuable consideration. Sanford v. Van Pelt, 314 Mo. 175, 282 S.W. 1022; May v. Gibler, 319 Mo. 672, 4 S.W. (2d) 769. (4) Transactions between husband and wife to the prejudice of creditors are looked upon with suspicion and their good faith must be so clearly shown that there can be no reasonable doubt of the honesty of the transaction. Oetting v. Green, 350 Mo. 457, 166 S.W. (2d) 548. (5) This same principle applies to transactions between parent and child. McDonald v. Rumer, 320 Mo. 605, 8 S.W. (2d) 592. (6) A voluntary conveyance is presumptively fraudulent and void as to creditors. When such facts are shown, the burden rests on the grantee or donee. To rebut the presumption of fraud, the proof must be clear, full and satisfactory. If there is reasonable doubt of the adequacy of grantor's means then the voluntary conveyance must fall. Miller v. Leeper, 120 Mo. 466, 25 S.W. 378; Godchaux Sugars v. Quinn, 95 S.W. (2d) 82; Scharff v. McGaugh, 205 Mo. 344, 103 S.W. 550; 27 C.J.S. 1002. (7) Failure of a party to testify in his own behalf or to call other witnesses within his power who have knowledge of the circumstances, raises a strong presumption and inference that the testimony of such persons would have been unfavorable. Russell v. Franks, 343 Mo. 159, 120 S.W. (2d) 37; Barber v. Nunn, 275 Mo. 565, 205 S.W. 14; MacDonald v. Rumer, 320 Mo. 605, 8 S.W. (2d) 592; Mason v. Perkins, 180 Mo. 702, 79 S.W. 683; Weil v. Richardson, 24 S.W. (2d) 175. (8) When a creditor, by fraud, will attempt to defeat the claims of other creditors, there is no hardship in postponing his demand, although a just one, to those claims which he is endeavoring to defeat. Farmers' Bank v. Handly, 320 Mo. 754, 9 S.W. (2d) 895.

Schultz & Bodney and Walter A. Raymond for respondents.

(1) The burden of proof was on the defendants to prove the fraud claimed by clear, cogent and convincing proof. As the decree is dependent on the credibility of oral testimony and is not palpably insufficient to sustain the findings for the plaintiffs the findings of the chancellor should be deferred to. Farmers & Merchants Bank of Festus v. Funk, 338 Mo. 508, 92 S.W. (2d) 587; Shelton v. McHaney, 338 Mo. 749, 92 S.W. (2d) 173; Strype v. Lewis, 180 S.W. (2d) 688; Moberly v. Watson, 340 Mo. 820, 102 S.W. (2d) 886; Stubblefield v. Husband, 341 Mo. 38, 106 S.W. (2d) 419; Daudt v. Steiert, 205 S.W. 222; Suhre v. Busch, 343 Mo. 679, 123 S.W. (2d) 8. (2) The trustee's sale was a valid sale and plaintiffs as purchasers at that sale acquired good title to the property in question. Title Guaranty Co. v. Sessinghaus, 325 Mo. 420, 28 S.W. (2d) 1001; Webb v. Salisbury, 327 Mo. 1123, 39 S.W. (2d) 1045; Sec. 3481, R.S. 1939; Brown v. McGuire's Real Estate Agency, 101 S.W. (2d) 41; 10 C.J.S., p. 744, sec. 247; 8 Am. Jur., p. 26, sec. 278; Brown v. McGuire's Real Estate Agency, 343 Mo. 336, 121 S.W. (2d) 754; Owens v. Owens, 347 Mo. 80, 146 S.W. (2d) 569. (3) The bankruptcy papers introduced in evidence by plaintiffs were not conclusively binding on them as they were impeached by defendants and there was other countervailing evidence. Diariotti v. Mo. Pac. Ry. Co., 262 Mo. 1, 170 S.W. 865; Concrete Steel Co. v. Reinforced Concrete Co., 72 S.W. (2d) 118. (4) Plaintiffs' title was not acquired by a voluntary conveyance without valuable consideration. They gave full value running over. See argument and cases cited under Point (3), supra, this brief. Vrooman v. Burdett, 336 Mo. 1181, 83 S.W. (2d) 95. (5) Plaintiffs' title was acquired at a valid trustee's sale unaffected by any previous transaction between Mr. and Mrs. Morgan. See argument and cases cited under Point (3), supra, this brief. (6) Plaintiffs invested far more than the income from this property. See argument and cases cited under Point (2), supra, this brief. (7) The failure of plaintiff, Forrest A. Talley, to testify, and the failure of plaintiffs to call Mrs. Morgan as a witness constitutes no basis for an unfavorable inference as defendants failed to make a case on the issue of fraud. Shidlowski v. New York, C. & St. L.R. Co., 333 Mo. 1134, 64 S.W. (2d) 259; Bahl v. Miles, 6 S.W. (2d) 661; Roehl v. Ralpy, 84 S.W. (2d) 405; Transamerican Freight Line, Inc., v. Monark Egg Corp., 236 Mo. App. 1046, 161 S.W. (2d) 687; Laughlin v. Boatmen's Natl. Bank of St. Louis, 163 S.W. (2d) 761; Bradley v. Becker, 246 S.W. 561. (8) As no fraud was shown the doctrine of...