Thompson v. Cohen

• Citation: 28 S.W. 984,127 Mo. 215
• Parties: Thompson et al., Executors, v. Cohen et al., Appellants
• Decision Date: 05 March 1895
• Court: United States State Supreme Court of Missouri

28 S.W. 984

127 Mo. 215

Thompson et al., Executors, v. Cohen et al., Appellants

Supreme Court of Missouri, Second Division

March 5, 1895

Rehearing Granted 127 Mo. 215 at 241.

Appeal from Madison Circuit Court. -- Hon. James F. Green, Judge.

Reversed.

M. L Clardy, Robt. A. Anthony and M. R. Smith for appellants.

(1) Under the practice in this state, equity cases are practically triable de novo in the appellate court. Blount v. Spratt, 113 Mo. 54; Benne v Schnecko, 100 Mo. 258; McElroy v. Maxwell, 101 Mo. 308. (2) When a court of equity once acquires jurisdiction of a case, if authorized to act at all in the premises, it will, to avoid a multiplicity of suits, do adequate and complete justice between the parties. Savings Inst. v. Collonious, 63 Mo. 205; Baile v. Ins. Co., 73 Mo. 384. (3) There was no evidence that Philip Cohen furnished any money whatever with which W. L. Cohen made the purchase of W. A. Hargadine of the property in dispute, on the third day of March, 1882, for an adequate consideration, and the judgment of the court below should have been for defendants. Keiser v. Gammon, 95 Mo. 224; 1 Greenleaf on Evid., sec. 74; Bump on Fraud. Convey. [2 Ed.], 581 and 585. The burden of proof is on the party who assails the conveyance, and if he do no more than create an equilibrium he fails to make his case. Kaine v. Weigley, 22 Pa. St. 179; Carter v. Gunnells, 67 Ill. 270. (4) It appearing that W. L. Cohen paid an adequate and valuable consideration for the property, it will be presumed that the purchase was fair and honest, and the proof must be clear that it was the contrary and fraudulent. Dallam v. Renshaw, 26 Mo. 533; Ames v. Gilmore, 59 Mo. 543; Funkhouser v. Lay, 78 Mo. 462; Bump on Fraud. Convey. [2 Ed.] p. 585. (5) The deed of W. A. Hargadine and wife, dated March 3, 1882, to W. L. Cohen is a good and sufficient deed between them, and can not be assailed for fraud, by the said Hargadine in his individual capacity, as undertaken in his petition in this behalf. Bump on Fraud. Convey. [2 Ed.] p. 472; Gutzweiler v. Lackman, 23 Mo. 173; Jacobs v. Smith, 89 Mo. 681; George v. Williamson, 26 Mo. 192. (6) The attempted purchase of W. A. Hargadine, for himself only, at sheriff's sale, on executions issued on judgments in favor of Wm. F. O'Bear, in favor of W. A. Hargadine and Hugh McKittrick for themselves individually, and Wm. A. Hargadine and Henry W. Elliott executors of the estate of Wyman Crow, and in favor of the A. F. Shapleigh Hardware Company, on the twenty-seventh day of March, 1889, was fraudulent, as to the other creditors for whom he admitted himself to be trustee, and is therefore void. Thornton v. Irwin, 43 Mo. 164; Dillinger v. Kelley, 84 Mo. 566; Roberts v. Mosley, 64 Mo. 510; Peacock v. Nelson, 50 Mo. 261; Damschraeder v. Thias, 51 Mo. 103; 2 Perry on Trusts [2 Ed.], sec. 602, p. 173; 1 Perry on Trusts [2 Ed.], sec. 195. A trust may be created by parol. This trust had in part been executed. 1 Perry on Trusts [2 Ed.], sec. 75, p. 58. (7) The decree rendered by the court in this cause is inequitable and unjust, and can not be maintained, and on plaintiff's petition in this behalf can not by this honorable court be reformed. Keiser v. Gammon, 95 Mo. 223; Woodard v. Mastin, 106 Mo. 364. (8) If W. L. Cohen bought the property in dispute for an adequate consideration held by W. A. Hargadine in trust for a certain set of creditors of Philip Cohen, which consideration was ratably distributed among such creditors, can they be heard by their trustee, or in any other manner against the deed, and would not such a conveyance be valid, though the property was bought for Philip Cohen, which, of course, respondents deny? Gutzweiler v. Lackman, 23 Mo. 171; Bump on Fraud. Convey. [2 Ed.], sec. 597. (9) A creditor must return the benefits when he desires to avoid a deed through which he was paid his debt. Bump on Fraud. Convey. [2 Ed.], p. 464; Glass Co. v. Baldwin, 27 Mo.App. 54; Stoller v. Coates, 88 Mo. 522.

B. B. Cahoon, Wm. N. Nalle, Wm. Carter & Weber for respondents.

(1) The decree is supported by the evidence, and should be affirmed, even though the evidence was more conflicting than it is. Gottschalk v. Kircher, 109 Mo. 170; Benne v. Schnecko, 100 Mo. 250; McElroy v. Maxwell, 101 Mo. 294. (2) Equity cases, if there is enough evidence in the record to justify the decree, will not be reversed because incompetent evidence was admitted, but will, by this court, be disposed of on the whole testimony deferring somewhat to the finding of the court below Blount v. Spratt, 113 Mo. 54; Barrett v. Davis, 104 Mo. 549; Davis v. Kline, 96 Mo. 401; Bush v. Arnold, 50 Mo. 17. (3) The evidence shows a common purpose of both the defendants, who are half brothers, to defraud the creditors of Philip Cohen, who has always remained in possession of the goods and the real estate in question. Hence all the declarations and acts of Philip Cohen, including other fraudulent dispositions of his property before and after the deed of Hargadine to William L. Cohen of March 3, 1882, are admissible, whether made in the presence of William L. Cohen or not, and circumstances may (and in this case do) show that William L. Cohen knew and participated in the fraud of Philip. Weinrich v. Porter, 47 Mo. 293; Erfort v. Consalus, 47 Mo. 208; Holmes v. Braidwood, 82 Mo. 610, 614, 615; Leeper v. Bates, 85 Mo. 224-228; Hopkins v. Sievert, 58 Mo. 201; Burgert v. Borchert, 59 Mo. 80; Leavitt v. LaForce, 71 Mo. 354; King v. Moon, 42 Mo. 551; Singler v. Goldenburg, 17 Mo.App. 549; Bump on Fraud. Convey [3 Ed.] 582. (4) Being purchased with the profits from the store business and sale of the goods in it, which were Philip Cohen's, the real estate was, under the facts of this case, his, although conveyed to William L. Cohen, and it could be by Hargadine sold to pay Philip Cohen's debts. Peck v. Land, 2 Ga. 1; Zoll v. Soper, 75 Mo. 460; Jackman v. Robinson, 64 Mo. 289; Lionberger v. Johnson, 88 Mo. 456; Bobb v. Woodward, 50 Mo. 95; Ryland v. Callison, 54 Mo. 513. (5) The pretended sale of the stock of goods in October, 1880, to Wm. L. Cohen and the alleged employment of Philip Cohen, the debtor, was fraudulent as to the creditors of Philip Cohen, whether the sale be claimed under the executions or under the bill of sale, because the change of possession from Philip or Emma C. Cohen to Wm. L. Cohen has never been actual, visible, exclusive, open, notorious, substantial, continued and unequivocal in Wm. L. Cohen. Betz v. Connor, 7 Daly, 550; McCarthy v. McDermott, 10 Daly, 450; Peck v. Laud, 2 Ga. 1; Hurburd v. Bogardus, 10 Cal. 518; McKibbin v. Martin, 64 Pa. 352; Claflin v. Rosenberg, 42 Mo. 439. (6) There has been no laches by plaintiff in bringing this suit. Zoll v. Soper, 75 Mo. 460; Bobb v. Woodward, 50 Mo. 99; Potter v. Stevens, 40 Mo. 229; Lionberger v. Baker, 88 Mo. Mo. 455. Nor were any laches pleaded. The limitation in this action is ten years. Sherwood v. Baker, 105 Mo. 477; Rogers v. Brown, 61 Mo. 191; Hunter v. Hunter, 50 Mo. 451. (7) No plea of defect of or necessity of other parties as plaintiff or that any one other than plaintiff has an interest in this suit and no estoppel in pais or otherwise by plaintiff to bring this action ever existed or has been pleaded. Noble v. Blount, 77 Mo. 235; Bray v. Marshall, 75 Mo. 327; City v. Schulenburg, 98 Mo. 613; Blodgett v. Perry, 97 Mo. 263; Galbraith v. Newton, 39 Mo.App. 581; 82 Mo. 402; Blodgett v. Perry, 97 Mo. 263; 51 Mo. 449; Martin v. Johnson, 23 Mo.App. 96.

Gantt P. J. Burgess, J., concurring. Sherwood, J., concurring.

OPINION

Gantt, P. J.

This is a proceeding in chancery to divest the title of a certain two story brick store building in Fredericktown, Madison county, out of William L. Cohen and vest the same in William A. Hargadine. Since the commencement of the suit and judgment in the circuit court, Mr. Hargadine has died, and his executors, the respondents have been duly substituted in his stead. The circuit court decreed the divestiture as prayed, and the defendants have appealed.

For many years prior to 1879, Philip Cohen had been a dry goods merchant in Fredericktown, and in that year failed. He was indebted to various wholesale houses in St. Louis. An effort was made by him to obtain an extension and a compromise of his indebtedness, but it proved ineffectual, and certain of his creditors began suit at once and obtained service while he was yet in the city of St. Louis. From this circumstance they have been denominated in this record his unfriendly creditors. The others, who were disposed to grant some concessions, also began suit at once in Madison county, where he lived, and it would appear that he purposely permitted these last to obtain their judgments before the unfriendly creditors could get theirs in the city. The friendly creditors at once levied upon and seized Philip Cohen's stock of goods and his store building, the real estate involved in this suit. In due time all the property, both real and personal, was sold and was bought in by Crow, Hargadine & Company, in trust for themselves and the other friendly judgment creditors, acting with them.

After this purchase was made, Crow, Hargadine & Company, through their trusted agent, Mr. Swain, and the other creditors through Mr. Fischer, acting by and with the advice of Messrs. Nalle and Edwards, the local counsel at Fredericktown, who had obtained the judgments and represented the friendly creditors in the whole transaction, sold the stock of goods to Mrs. Emma C. Cohen, the wife of Philip Cohen, and took her note for $ 2,000 therefor, secured by a deed of trust on a farm of hers in Wayne county she had inherited from her father. Mr. Swain testified that Nalle and Edwards made the arrangement for the sale to Mrs....